Attack Outlines

1. INTENTIONAL TORTS

A. Battery (Volition) Is there a volitional act?

o Insanity/irrationality does not negate volition (See Polmatier)o Reflexive Actions do negate volition. (See Laidlaw)

(Intent) Did A intend to cause contact with B that is harmful/offensive?o Purpose:

If the act is unlawful intent is unlawful (See Vosburg)

Must be intent to cause contact that is harmful (See Knight)

If pure accident, maybe NL. Non-consensual contact can be offensive (See White)

Obj Standard: is this something that would have normally occurred in this setting?

Exceeds consent? (see Mohr/ see Grabowski ) o Substantial certainty that harm would occur to someone?

(See Boy pulling chair hypo) (See Larson)

o Transferred Intent (see Keel ) Person who suffers contact does not need to be

intended target. Everyone involved can be liable!

(Causation/Damages) Did A’s act cause such a contact?o Egg-shell skull rule: even if harm is disproportional, if you

caused it, L. CHECK DEFENSES

R2d 18 Battery: Offensive Conduct(1) An actor is subject to liability to another for battery if He acts intending to cause a harm or offensive contact and offensive

contact results. (2) An act which is not done with the intention stated in Subsection 1a does not make the actor liable§ 19: What constitutes offensive conductA bodily contact is offensive if it offends a sense of personal dignity.

B. Consent (Affirmative Defense) No Consent Specific Consent

Did the contact exceed the specific consent given? Non-life threatening procedure requires new consent

(See Mohr) Life-threatening = implied consent

(see Necessary intervention hypo) Ghost Surgery = ok (See §52/ Grabowski old rule) Specific consent to touching of that nature ((See

White) Consent but procured through fraud

Is the fraud related to the personal interest sought to be protected by the tort of battery?

Is the fraud collateral to the essence of the touching? Was it really separated from what you consented to?

No, L. (Nature of fraud is essential to nature of touching (See Neal)

Yes, NL. (non-disclosure of HIV is separate from dental procedures (see Brzoska )

Implied Consent to some degree of contact (see Knight)C. Self-defense of person proportional to harm that is being done.

Must be proportional No spring gun (See Katko)

B. Trespass

Elements: Intent

Substantial certainty L (see Pegg/ See §158)o Can one reasonably assume that it is likely for

trespass to occur by these acts? Accidental intrusions NL (See Malouf/§166 ) Mistake of fact does not negate intent L (see

golfers shooting laundry hypo/ §164) Entry without consent

EXCECPTION: Desnick (consent procured through fraud is still effective if acts are still within scope of business)

Distinction between business and private property L (see C-section hypo with at-home birth; stranger) NL Cohen v. Smith (hospital c-section)

Damages/Harm (can be dignitary/nominal) Causation (harm caused by D’s trespass)

B. Consent (Affirmative Defense) No Consent Specific Consent

Did the contact exceed the specific consent given? Non-life threatening procedure requires new consent

(See Mohr) Life-threatening = implied consent

(see Necessary intervention hypo) Ghost Surgery = ok (See §52/ Grabowski old rule) Specific consent to touching of that nature ((See

White) Consent but procured through fraud

Is the fraud related to the personal interest sought to be protected by the tort of battery?

Is the fraud collateral to the essence of the touching? Was it really separated from what you consented to?

No, L. (Nature of fraud is essential to nature of touching (See Neal)

Yes, NL. (non-disclosure of HIV is separate from dental procedures (see Brzoska )

Implied Consent to some degree of contact (see Knight)C. Self-defense of person proportional to harm that is being done.

Must be proportional No spring gun (See Katko)

R2d §158 Elements of TrespassLiable for trespass if one intentionally

enters land in the possession of another or causes a thing/third person to remains on the land, or fails to remove from the land a thing which he is under a duty to remove. Note: NL if forced onto land i.e kidnapped

R2d § 164: Intrusions under mistakeOne who intentionally enters someone else's land is liable as a trespasser, even if he is mistaken (however reasonable), that he: is possession/entitled to the land; has the consent of owner/ has other privilege. Not the type of mistake that negates intent.R2d § 166 Non-liability for Accidental IntrusionUnless actor is being abnormally dangerous, an unintentional and non-negligent entry of someone else's property NL, even if the entry cause harm to the owner or a thing in whose security the owner has a legally protected interest.R2d § 168: Intrusions under mistake

Possible defenses:F. Consent (acting within bounds of specific given)

See Desnick (still got eyes checked, all business things)G. Defense of Person/Property

a. Must give notice i. Woodbridge :(dog)

ii. Katko: ( gun) iii. Hull: ( reasonable efforts)

b. Must be proportional to threat i. Woodbridge :(dog reasonable)

ii. Katko: ( gun lethal)c. Timing matters (See Wright)d. Life > Property (See Ploof)e. Relative value of property (See Kershaw)

H. Private necessity (SEE BELOW) Escaping danger (See Rossi) But L if damage is done (see Rodi Yachts) Imminent/foreseeable threat (See Texas Midland)

I. Public necessity (SPLIT)a. R§262: reasonably believed threat v. Struve: must be accurately

assessed threat

C. Defense of Person/Property Key Elements

Notice to Aggressor “gently lays hands upon” If reasonable attempts to give notice are frustrated, this satisfies the law (See Hull v. Scruggs) Dogs give notice (See Woodbridge) Spring guns do not give notice/always lethal/indiscriminate (See Katko )

Subjective/Reasonable Belief in Proportionality (extent of force is justified by level of danger being faced) Consider:

Tort being committedi. Mere theft does not allow for lethal force (See Katko ) – note: dogs may have been allowed

Value of propertyi. Property v. Property = balancing/weighing of economic factors

1. See Hull v. Scruggs2. See Kershaw relative value, single owner theory

ii. Person > Property always!1. See Katko

Level of threat of violencei. Physical threat allows for greater force (See Wright v. Haffke ) ii. Stand your Ground.

Time that passedi. Immediacy of threat remains/crime still happening (See Wright v. Haffke ) ii. Can’t pursue and shoot.

Reasonable efforts i. 1) drive dog away, 2) confine dog while in the act 3) notify owner to no avail, it is reasonable for him to shoot and kill the

dog. (See Hull v. Scruggs) Policy Rationale

Deterrence: Promote certain behaviors, deters extreme behaviors though (fairness spectrum) Concern for escalation (if the initial aggressor knows the victim can use some force to protect himself, the aggressor may be deterred

from aggression court is wary of excess cost/force Ex. Stealing pen, but if victim can kill you for trying to steal, then aggressor may just kill you and steal pen.

D. Private Necessity Applicable: Where a 3rd party is aggressor (human or non-human threat) Are D’s actions privileged? Is D privileged in interfering with P’s exclusive property?

Preservation of human life

(See Ploof v. Putnam) distinction between passive and affirmative denial of necessity (See Texas Midland) there was foreseeable and substantial certainty that wife would be harmed

Immediacy of threat Escaping threat of dog (See Rossi) Squatters (See London Borough)

When party whose property is damaged is P ASK Is the privilege complete don’t have to compensate Is the privilege incomplete? D will have to compensate

See Vincent damage to dock must be compensated because protection was over property (see economic theory)E. Public Necessity

Elements: Public is in danger

If the public is in actual peril, then city can destroy the house to preserve the neighbor. Owners also benefitted from destruction. (See Surroco )

Private citizens can likewise claim public necessity Actual danger

SPLIT IN AUTHORITY Struve : Mistaken belief/ lack of accuracy does not allow public necessity defense.

i. Policy: Don’t want to incentive unnecessary violations/destructions. R §262: So long as the threat is reasonably believed, the accuracy is irrelevant.

Policy Discussion of Vincent : (Property right POV): in Vincent, the dockowner’s property rights are damages bc the private privilege necessitated its use (Deterrence/Incentive/Resource Allocation): denying dockowner’s recovery when necessity for emergency would increase tendency of

ship owners to risk damaging docks to save their boats ASK:

Which party is in the better position to compare the risk to the dock with the risk to the ship? The party with both the most relevant knowledge and capacity to act on it should be L. SINGLE OWNER THEORY

R2d 262 (Complete) Privilege Created by Public NecessityOne can commit an act if the act is believed to be necessary for the purpose of avoiding a public disaster

3. Negligence (BRIEF)

Step 1: What type of negligence is alleged?o An affirmative act/undertaking of rescue/special relationship?o Product?o Strict Liability applicable to skip over breach?o Nuisance?o BATTERY?

Step 2: Duty of reasonable care owed to Po Is there a special relationship?o Is this person a trespasser? Business Invitee? Social Licensee?o Was there an attempted duty to rescue?o Did D create the dangerous situation?

Step 3: Breach of Duty o Hand Formula?o Res Ipsa?o Custom?o Negligence Per se

Step 4: Actual Causation (SAY SUBSTANTIAL FACTOR) (2X Test) If you can’t prove by preponderance, can you shift the burden? (Alternative Liability)

Did P prove both D’s are negligent (Summers) Fire: Is it possible there is a non-negligent source? (Kingston: P

doesn’t need to show that the other source was negligent, auto shift to B)

(Market Share) Apply Sindell:

(Res Ipsa Loquitur) Is Summers Applicable? Is Ybarra Applicable?

Step 5: Actual Damages/ harmo P: Keep it broado D: Keep it narrowo Types: Compensatory, punitive, injunction, declaratory

Step 6: Proximate Causation (Foreseeable + intervening) Consider how to frame type of harm v. damages

Possible defenses:o Duty to rescue at all?o CONSENT? explicitly given or see belowo (PRIMARY ASSUMPTION OF RISK) Is the language

clear in the risk being assumed? Van Tuyn : missing negligence language

doesn’t assume that risko (EXPRESS ASSUMPTION OF RISK) Formal signing of

willingness to accept risk and consent (see Manning ): sufficient language to shift risk

to Po Contributory/Comparative negligence?

Public Policy:Ask: Is there actually choice in the market? Is there concern that levels of care fall

unreasonably? Consider Hand Formula

3. Negligence

Affirmative ActsR § 7 Duty(a) An actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm.(b) In exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that D has no duty or that the ordinary duty of reasonable care requires modification.R2d § 314 Failure to Rescue (NO DUTY TO RESCUE)"The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action."R2d § 321 Duty to act when prior conduct is found to be dangerous(1) If actor does act…[and] has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect.R2d § 322 Duty to aid another harmed by actor's conductIf the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm.

Note: a duty is still owed even if contributory negligence of the person injured would disable him from maintaining any action for the original harm resulting from the actor's original conduct

Third Party DutyR § 315 General PrincipleThere is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or(b) a special relation exists between the actor and the other which gives to the other a right to protection.GOOD SAMARITAN DOCTRINESR2d § 323 Negligent Performance of UndertakingEssentially, no duty to rescue, but if you undertake the rescue you must do so reasonably. Liable if:(a) his failure to exercise such care increases the risk of such harm, or(b) the harm is suffered because of the other's reliance upon the undertaking.R2d § 324 Duty of One who Takes Charge of Another who is HelplessOne who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor's charge, or(b) the actor's discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him.

A. Duty When they engage in affirmative acts i.e. the sort of acts that can create risks for others Duty to do so reasonably Framing can give duty or take it away

i. Broad: There was a duty. There was a death, you had a duty to not cause my death in your rescue. ii. Narrow: There was no duty. There was a death by injury from rescue, there were other causes of your death that were outside of my

control trying to save you. Apply § 323 - worse off

No Duty Rule: Generally, one does not have a duty unless some exception applies:a. Exceptions:

i. Affirmative Actsii. Special relationships (§315)

Maritime (extended to employer/employee often) See Petition of Trans-Pacific FIshing (esp for policy factors)

Common Carriers/passenger (see Brosnahan) Time and space limitations (See Boyette: discharged duty)

Teachers – children Innkeeper/GuestShopkeeper/business visitorLegal custodian and her charge e.g. jailor/prisoner

iii. Innocent creation of risk? See Yania (did not cause peril, NL) (§§321 (creation of risk) 312(duty after risk materializes)

iv. (Undertaking) If you engage in a rescue, duty to do so reasonably (See, e.g. Lawters) ASK: if the rescue leaves person in a worse position? § 323

L (Lawters: drops wife) NL (secondary peril not rescuer’s fault; See Frank)

ASK: Was there detrimental reliance? Previous relationship does not provide a basis for reliance argument. (EPISODIC analysis) Attenuated/General NL (See Hurley: Sending word to personal physician, so didn't call other doctors.) Specific L (See O'Neil (relied on the doctor's rec and didn't go to a different hospital or do anything else)

(TEMPORAL ELEMENT) When Does treatment begin that would trigger the duty to give reasonable care? Hurley : no duty for new episode of treatment

Oneill : duty was triggered once they started discussing/giving medical advice IF reasonable undertaking fails NL (See Oullette/ Frank)

Gratuitous Services (§324) See Ocotillo (Good Samaritan/duty after serving booze)

Third Party Duties (Consider what is the goal does the relationship further this goal?) (R§315)

Policy Rationale: (Go through if applicable or NA) Protection of liberty interests/personal

autonomy o (shouldn't compel people to put

themselves in danger) Concern for amateurish rescue Chilling Effect

o Are we discouraging the more capable rescues?

Appeal of Altruistic motive o Takes away the appeal of the altruistic

motive Practical concerns

o what if 100 ppl watch someone drown… who should P's estate sue?

Is there a duty to warn?o L Specific threat/known victim (See Tarasoff : yes duty to warn about dangerous patient)o NL too generic (See Thompson)

POLICYo **Some states require duty to protect i.e. 72 hour requirement or new meds (anything short of warning) o **Some states taken strong statutory positions re: duty to warn about sex offenders

Duties to Trespassers/Guestsb. What type of negligence is alleged?

An affirmative act/undertaking? Failure to inspect the property for defects? Failure to disclose/warn of defects?

c. Who is the harmed person?i. Trespasser (generally no duty, but you can't intentionally or wantonly harm trespassers on your land) (on public land, you'd probably

have a duty to act reasonably because there was an affirmative act of discharging firearm/etc on public grounds/potentially negligence per se <-- do Hand Formula)

Unknown trespasser? (See Haskins ) Discovered trespasser? (see Herrick ) Child? (See Keffe for majority rule: attractive nuisance L) (See Ryan for minority rule NL) Known frequent trespasser? (see child rules)

ii. Social guest/licensee (Duties) affirmative acts

(duty of reasonable care) Disclosure of known dangerous conditions on property

Duty to disclose known, unreasonable risks of harm owed (or duty to correct known, unsafe/unreasonable conditions) But only if licensees do not know or have reason to know of the condition

Disclosure of unknown dangerous conditions on property No duty to inspect property for conditions and remediate/issue warnings regarding such conditions

No transaction that might mutually benefit both parties Weak deterrence argument here (different motives for enforcing protections)

If home owner knows of a dangerous condition likely already incentivized by personal safety concerns rather than legal concerns.

The law is reluctant to interfere in social relationships, including intrusion of personal freedom and privacy. iii. Business guest/ invitee Contractual relationship/transactions

Quasi-volunteer/employee NL volunteer bc no contract when should have had one (See Mattef)

L employee bc no contract but customer is always an invitee/asked to help business (See Jacobsma) Business owners/invitees are asking/inviting people to come into their premises. Thus, if there are known/unknown dangers, it

could essentially operate as a trap for any guests who are then induced to enter and injured. Court doesn’t really inquire into the intent for entering a premises (given there is consent and the person is not a trespasser.)

a. (Policy) Deterrence: i. Encourage businesses to be safe/reasonable in affirmative actions, as well as proactively inspect properties to ensure full

protection for open invite. ii. There is an expectation that business owners may cut corners, or tightly round regulations. Need further incentive.

iii. Invitees has no sense of what kind of person the premise owners are. Whether they are risk-averse or more risk-tolerant. Thus, having an objective level of care standard by tort law, gives the consumer a more comfortable and predictable environment for commerce.

b. Resources: Businesses may also be in a better position to compensate and also may generally have a lower B in Hand formula. c. Policy: We want to encourage people to spend money and feel physically safe enough to go grow the economy.

Trespassers Licensees Invitees

Unknown Trespasser

Known (Discovered) Trespasser

Artificial Conditions Dangerous to Children (Attractive Nuisance)

Known (Frequent) Trespassers

(Social Guests & Volunteers) (Business Guests)

Willful/ wanton/ reckless acts?

Liability (Haskins) Liability Liability Liability Liability Liability

Dangerous Activities?

No Duty (Haskins)

Liability (Herrick) Likely Reasonable Care

Reasonable Care (If risk of death/serious harm)(Rest. §334)

Reasonable Care (if danger hidden)(Rest. §341)

Reasonable Care (if danger hidden) (Rest. §341)

Nondisclosure of known defects? No Duty No Duty

(Generally)

Reasonable Care (to eliminate danger of death/serious harm)(Rest. §339:)(Keffe: L- no alluring requirement)(Ryan: NL -condition didn’t attract)

Reasonable Care (for artificial conditions & risk of death/serious harm) (Rest. §337)

Reasonable Care(if danger hidden) (Rest. §342)

Reasonable Care (Rest. §343)

Nondisclosure of unknown defects that should reasonably have been discovered?

No Duty No Duty No Duty No Duty

No Duty (unless caused by Owner’s "affirmative negligence") (Davies: carbon monoxide) (Lordi: D’s creation of danger)

Reasonable Care (Rest. §343)

LICENSEER2d § 330 Licensee Defined A licensee is a person who is privileged to enter or remain on land only by virtue of the possessor's consent.R2d § 341 Activities Dangerous to LicenseesA possessor of land is subject to liability to his licensees for physical harm caused to them by his failure to carry on his activities with reasonable care for their safety if, but only if,(a) he should expect that they will not discover or realize the danger, and(b) they do not know or have reason to know of the possessor's activities and of the risk involved.R2d § 342 Dangerous Conditions Known to Possessor (LICENSEE)LIABLE IF (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and(c) the licensees do not know or have reason to know of the condition and the risk involved.

INVITEE R2d § 332 Invitee Defined (1) An invitee is either a public invitee or a business visitor.(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.R2d § 341A Activities Dangerous to InviteesA possessor of land is subject to liability to his invitees for physical harm caused to them by his failure to carry on his activities with reasonable care for their safety if, but only if, he should expect that they will not discover or realize the danger, or will fail to protect themselves against it.R2d § 343 Dangerous Conditions Known or Discoverable to Possessor (INVITEE)LIABLE IF:(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and(c) fails to exercise reasonable care to protect them against the danger.

LANDOWNER LIABILITYR § 333 General RuleExcept as stated in §§ 334-339, a possessor of land is not liable to trespassers for physical harm caused by his failure to exercise reasonable care(a) to put the land in a condition reasonably safe for their reception, or (b) to carry on his activities so as not to endanger them.R § 334 Activities Highly Dangerous to Constant Trespassers on Limited AreaA possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area thereof, is subject to liability for bodily harm there caused to them by his failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care for their safety.§337 Artificial Conditions Highly Dangerous to Known Trespassers A possessor of land who maintains on the land an artificial condition which involves a risk of death or serious bodily harm to persons coming in contact with it, is subject to liability for bodily harm caused to trespassers by his failure to exercise reasonable care to warn them of the condition if (a) the possessor knows or has reason to know of their presence in dangerous proximity to the condition, and (b) the condition is of such a nature that he has reason to believe that the trespasser will not discover it or realize the risk involved.§339 Artificial Conditions Highly Dangerous to Trespassing CHILDREN (similar to above)Liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

Maybe the economic or social value of the artificial condition can have a huge benefit, but unsecured danger to children's physical well-being is a pretty high bar, thus you should have some common sense and basic safety measures if it is truly that important. I.e. a lock or fence.

(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

B. Breach of Duty of reasonable/standard of care

1. Reasonable Person a. Objective Standard for “Who is the reasonable person?”

i. See Vaughan: no exception for lower intelligence iii. Expert level may be held to a higher standard though expert in industry

b. EXCEPTIONS: (for contributory negligence only)i. MUST BE Distinct Defect Rule: When to consider “X” as a factor of the reasonable man

How discrete is the problem (can it really be measured and how easily can real claims be separated from false claims)o See Lynch (distinct mental disability to lower reasonable person expectation re: contributory negligence)o Illiteracy is not distinct must be able to be known by others so they can take proper precautions

See Weirso Deafness is Distinct

But P can still breach the lower standard (see Kerr: train horned, but kerr was still walking on tracks)o Blindness is Distinct

If deafness precautions met by P L (see Davis ) o How visible is the defect to others Ex ante (before accident)o Who is in the best position to prevent? Mentally disabled or person with knowledge

2. Hand Formulaa. Hand Formula

i. B<PL (if yes, then burden should be taken.) B = burden/cost of untaken precaution issue (See Adams: alternatives are expensive) P = reduced risk of harm that could have resulted from taking precaution L = consequences/level of harm at stake See Carroll Towing (burden of having bargee on board during reasonable hours is lower than PL)

ii. Consider: contributory negligence assessments if B>PL, then B may be justified HUMAN LIFE always take the risk Eckert (where PL of child’s death without risky save is much higher than B)

iii. Marginal Analysis may weigh in favor of NL since no need to increase precautions PL is so small ex ante no need for B NL Bolton (burden of increasing fence height to stop rare home runners is not cost justified PL is too small)

NL Bullock (burden of changing safety precaution for wire placement is not justified by PL if the precautions were reasonable and alternative are too costly)

b. Policy Rationalei. promotes negligence law’s goal of regulating social conduct to promote efficiencyii. which encourages parties to take efficient level of precautions) court will only impose L for cost-justified precautions

R § 283 Conduct of a Reasonable ManUnless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man.

c. Disadvantagesi. highly speculative assumes people are always going to be risk neutral (some industries; big risk = big reward)ii. fails to take activity level rationale into consideration i.e. alternative methods to achieve desired goal

3. Customa. RULE: custom is not dispositive; compliance with custom is not way to determine standard of care owed to society and no defense

i. See TJ Hooper: If the court ran it’s own Hand Formula, custom falls way below PL (not having radios = not ok)ii. Exception: can use innovation as a counter-argument for D not fully adopted yet.

b. Contractual EXCEPTION: If contractual agreement and perfect information/economic model Custom may be appliedi. Rodi Yachts (healthy market forces/competitive market that allows consumer choice between risks)

c. Medical MalpracticeNational standard of custom is generally applied.

i. Hospital Procedure (Distinction between medical judgment re: dosage/care (national) v. availability of resources (local) National standard of care: a physician is required to exercise the degree of care and skill of the average qualified practitioner,

taking into account the advances of the profession (See Brune) Locality standard (minority rule): standard is built around persons engaged in a similar practice and similar localities giving

consideration to geographical location, size and character of the community, similarity of the communities (based on similarity of facilities, practices and advantages (not on population)

o See Gambillo Applies to Hospital Resources/facilities/function (See Johnson: locality standard since poor staffing couldn’t be helped in

rural area)ii. CONCERNS

Procedural concern custom are determined by experts, but doctors generally don’t want to testify against their own colleagues Consider: if the standard changes, does the behavior change in the intended manner? Is the deterrence sought actually effected?

iii. Policy: The medical objective is to protect/preserve life thus, self regulation aims to maximize this goal (doesn’t need the law to apply

this pressure) Inherently ethical field (Hippocratic oath) and doing right by patient Medical incentives already push best decisions possible medical field cost-benefit analysis is already ideal (not profit driven)

iv. Trend: increasing willingness to challenge medical custom based on the empirical evidence i.e. deaths from physician errors Even so, generally a self-regulated/contained response and change

d. Legal Malpractice (see Cook: state bar based standard)

5. Negligence Per Se (MOL breach of standard of care b/c statutory violation)

a. Elementsi. D violated a statute;ii. P is a member of class of persons statute is designed to protect (§ 286a)iii. intention of statute is to impose a standard of care

v. P suffered harm of a type that the statutes was designed to prevent Causation: breaking the statute has to be the cause of accident (§286b-e)

See Herzog (violation of statute inherently increases risk of/causes harmvi. EXCEPTIONS

When non-compliance increases safety (see Tedla: perhaps not negligence per se; but contributory only) (§288e) Disconnect between standard of care and statute

o Disconnect between statute’s purpose and harm (See Selger: dog poop)o Sunday Blue Laws (Split in authority but look to reliance to pushback)

NL See Tingle (Train hits cow on Sunday) L See White (shooting on Sunday direct safety violation)

R3T § 286 WHEN STANDARD OF CONDUCT DEFINED BY LEGISLATION OR REGULATION WILL BE ADOPTEDThe court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part:(a) to protect a class of persons which includes the one whose interest is invaded, and(b) to protect the particular interest which is invaded, and(c) to protect that interest against the kind of harm which has resulted, and(d) to protect that interest against the particular hazard from which the harm resultsR3T § 288 (Exceptions)(a) the violation is reasonable because of the actor's incapacity(b) he neither knows nor should know of the occasion for compliance;(c) he is unable after reasonable diligence or care to comply; (d) he is confronted by an emergency not due to his own misconduct; (e) compliance would involve a greater risk of harm to the actor or to others.

6. Res Ipsa Loquitur (we know accident occurred, but is negligence the cause): " is it more likely than not that harm was a result of D's negligence?)Are there instances where D is not negligent and the harm still occurred, and are there instances where D was negligent and harm stilled occurred?

Negligent explanation v. non-negligent explanation, but D is still involved Stage is still in negligence prong trying to prove there is a duty and that it was breached. Given no negligence on the part of D, is it likely that this harm would have occurred

ii. 3 elements: Accident is not the kind that would have occurred without D’s negligence?

i. In 100 simulations, is D’s negligence the cause in 51+? in 100 cases, does the accident happen without negligence?ii. No, if the accident is common in setting (See Hunsberger )

iii. No other alternative explanation (see Guthrie: cow falling through ceiling) Caused by instrumentality under D’s exclusive control?

i. Yes, over barrel (L) See Byrneii. No, not over chair in room (NL) See Larson

iii. **Joint Control (See Bond v. Otis) Injury must not be due to any voluntary action or contribution by P

i. Essentially D’s affirmative defense Smoking out objective: (always apply if below) (See Ybarra )

i. Is there an unknown negligent actor who caused the harm? # of parties (smaller the better)

ii. Is there a concern over conspiracy of silence (frequent collaborators, possible friends…)?iii. Is each in a position to see what the others were doing?

Ex. No turkey cooking problem (See Sampson v. Riesing) Ex. No See Actiesselskabet

iv. Are all the possible D’s accounted for in the case? Where it was not 50% likely that 2 workers dropped board and Ybarra wouldn’t work with 19 ppl See Wolf

Policy rationale for RIL is that D has more access to evidence + distrust of discovery processi. Destruction of evidence

Where the evidence of possible negligence was destroyed, courts err on side of RIL (See Judson)ii. Equality of ignorance

Where evidence is lost, but D can’t access evidence as well as P if this is the kind of accident that is more likely to be caused by D’s negligence court imposes liability of accident (See Haasman)

iii. Hazards of the sea Where the accident is not the kind that is more likely than not from D’s negligence (See Walston)

Planes more likely to have instances of compliance error, ships less likely bc hazards of sea present more risks inherently.

C. Defendant’s Defenses1. Contributory and Comparative Negligence

i. D may be negligent, but D argues that actions of P either prevent recovery or should reduce amountii. (Traditional) Contributory Negligence All or nothing – strict/harsh application (AL, DC, NC, VA, MD)

See Harris v. Meadowsiii. (Majority) Comparative Negligence (balance faults and apportion liability appropriately)

Pure: damages reduced in proportion to P’s fault Modified: reduce damages in proportion but only if P’s negligence is not greater than (See McIntyre v. Balentine)

i. (50% rule) only if P’s negligence is less than 50% (49%)ii. (49% rule) only if P’s negligence is 50% or less

iv. EXCEPTIONS that bar recovery Bad faith/serious criminal violation: Where P is engaged in seriously unlawful conduct no recovery for direct

results of that violation i. No recovery (See Manning v. Brown ) ii. If negligence is unrelated to violation, may not be barred though See Celebrating robbers hypo

“Doctor Rule”: Under the guise of contributory negligence, physician can’t avoid L for negligent treatment by asserting that patient’s injuries were originally caused by contributory negligence

i. Full recovery for P i. See Fritts v. McKinne (no different standard for drunk v sober patients)ii. See Van Vacter v. Hierholzer (P’s own conduct/disregard for medical treatment worsened situation)

Independent Duty for Care: where D had duty unconnected to violation in any wayi. (Balance recovery) See Alami v. Volkwagon: duty for reasonably safe design to P + everyone

Rescue Rule: only applies if rescuer’s actions are reckless/rash/unreasonable.v. Policy:

Deterrence and incentives for P to take reasonable self care + FAIRNESS

2. Plaintiff’s Assumption of Risk Where D owed no duty to P in the first place collapses B<PL to P’s own assessment and freedom of choice POLICY:

P has chosen B>PL, primary assumption of risk is a private ordering and by partaking in the action, has shown the preferences for personal enjoyment over danger of risk

Save resources by deferring to agreementa. Express Assumption of Risk (formal agreement)

i. ASK: Is the language clear in the risk being assumed/shifted? Missing negligence language and assumption no assumption of that risk (See Van Tuyn v. Zurich American Ins) EXCEPTION:

Gross negligence must be specified and even then, some jurs. Will not allow companies to waive gross negligence (i.e. not packing a parachute)

Specific release (for religious reasons) damages for dr’s negligence were reduced 75% bc waiver of blood transfusions (See Shorter v. Drury)

ii. Economic Rationale of Risk Posner (HAND Formula)

Focuses on the company Acting rationally in the market (to stay in business) take foreseeable precautions to prevent loss to business no need for tort law [when market functions/acts rationally] closer to contracts re: private agreements/ordering

Market for Risk (see Manning v. Brannon ) Assumes 2 types of companies (catering to ppl based on the risk level they seek/tolerate)

i. Higher level of risk (w/ waiver) with lower prices;ii. Lower level of risk (no waiver) with higher prices;

Meaningful Choices between companies (Bargaining power)iii. Public Interest Analysis (TUNKL TEST) if against public policy = no enforcement

Type of business is suitable to public regulation; Often a matter of practical necessity/importance for the public; Party to perform the service for any member of the public within established standards As a result of essential nature of service, party invoking exculpation possesses a decisive advantage of bargaining strength In exercising a superior bargaining power, the party confronts public with standardized adhesion contract As a result of transaction, person is placed under control of seller, subject to the risks of carelessness by the seller

b. Implied/Primary Assumption of Risk (risk is inherent in activity P freely chooses to partake)i. Required: risks involved cannot be eliminated without fundamentally altering the nature of the activity itselfii. Reasonable person standard: should know what the risks are no need for HAND formula because P did this assessment and

chose PL is worth B.

iii. ASK: Did P consent to the risk? Did P know what he was getting into?

See Murphy v. Steeplechase Amusement Flopper did exactly what it was meant to do/why its attractiveiv. EXCEPTION:

Where P consents to specific risks, but the harm arose out of a different risk P does not assume risk of D’s negligence See Woodall v. Wayne Steffner P assumed foreseeable risks of his stunt, but not a bad driver (explicitly tried to

mitigate this risk and shifted the burden of precaution to D) Inherent features – is the risk an inherent feature of the activity (see foul baseball game hypo)

Setting/expectations – where injury is not expected o i.e. after play in football has ended no assumption bc not within the inherent risks of the sport (See

Hackbart v. Cincinnati Bengals ) c. Secondary Assumption (P chose unreasonably to encounter risk negligently created by D handled by comparative negligence now)

D. Strict Liability (Show how each case/fact pattern applies R2d or deviates)

A. Ask: Should D pay costs to P even if reasonable precautions taken?i. Is this an activity we want to deter? Should we impact activity level decisions?

i. If an animal… Is it wild and is the harm directly caused by animal?

a. (Yes, See Behrens: elephant)b. No: wild af (See Candler: baboon)

Is the animal domesticated or have high social value i.e. reciprocity of benefits (See Earl: bees) Dogs One bit rule (Smith v. Pelah )

ii. Is it an abnormally dangerous activity? (§520) §520 factors weigh in favor of negligence (See Indiana Harbor ) Was there destruction of evidence that could have exonerated or implicated D’s conduct? (See Siegler )

ii. Is there considerable residual risk left after expecting that due care be taken in administration of activity? (Ex ante)i. No Walker Shoe: fire hazard can be prevented.

iii. Common Use of land? (Big Lake Oil)iv. Is this a reciprocal risk? Or benefits (see Earl: bees)

i. If yes NL See Turner: oil in TX (See Rickards: common use + third party though)

ii. If Nonreciprocal L (Check R2d. § 520) Does the threat of harm exceed the level of risk to which all members of the community contribute in equal shares?

R2d § 519 General Principle(1) One who carries on an abnormally dangerous activity L although he has exercised the utmost care to prevent the harm.(2) SL is limited to the kind of harm likely to come from the abnormally dangerous activity i.e. proximate causation

R2d § 520 Abnormally Dangerous ActivitiesFactors to be considered: (MOL/judge-determined)

(a)  existence of a high degree of risk of some harm to the person, land or chattels of others;(b)  likelihood that the harm that results from it will be great;(c)  inability to eliminate the risk by the exercise of reasonable care;(d)  extent to which the activity is not a matter of common usage RECIPROCAL(e)  inappropriateness of the activity to the place where it is carried on; and(f)  extent to which its value to the community is outweighed by its dangerous attributes.

Activity rationale: (a), (b), (d), (e), (f) ; Residual rationale: (a), (b), (c), (e)R3d § 20 PFD: Strict Liability(omits “social value” criteria) was too subjective and circular – if you always get the benefits, seems you should likewise take the costs

Uncommon activities Degree of reciprocity i.e. tiger v. cat Is D unilaterally imposing risks on P? (See Lubin )

v. Is D in the best position to avoid this harm? Least cost? i. See Crowhurt: ivy for best position to know dangerii. See Lubin: loss spreading

iii. No See Indiana Harbor: transportation error should not be on manufacturer

1. Respondeat Superior

The master is vicariously liable for the torts of his servant committed within the scope of the employment.A. 3 elements to establish SL

1. Is employee acting in “scope of employment?”a. Frolics are not within scope. (See Miller)b. Detours = still in scope (minor deviation)b. Time/setting? c. Reasonable foreseeability of actions (Bushey ) d. Actions unrelated to job, even at workplace (See Roth: criminal act)e. Is the weird/drunk/drugs expected in the profession? (See Bushey)

2. Is it an employee or independent contractor?a.*** Does the employer or individual have control over means of work? (See Miami Herald: labeling contractor is not dispositive; but §220 factors are)b. What is the relationship between the parties?c. Is the employer exercising sufficient degree of control over means of how contractor goes about the task?d. How are they being paid? How often?

3. Policy Rationale:a. Functional Can we change the employer’s activity level to prevent future accidents? (See Konradi)b. Formalist Use simple, rule-based, logical reasoning employee was on lunch break, not within the scope of employment

B. If suing employee under negligence theory1. Must construct argument as:

a. employer was negligent for hiring this unreasonably dangerous employee

R2d § 228 Conduct of a servant is within the scope of employment, if, but only if:

1. It is of the kind he is employed to perform2. It occurs substantially within the authorized time and space limits3. It is actuated, at least in part by a purpose to serve the master, and4. If force is intentionally used by the servant against another, the use of force is not expectable by the master

R220 Definition of Servant(1)  A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control.

Is D a contractor?Ask: An agreement for close supervision or de facto

close supervision of servant's work Work which does not require the services of one

highly educated or skilled Supplying of tools by the employer Payment by hour/month Employment over a considerable period of time

w/ regular hours Full time employment by one employer Employment in a specific area or over a fixed

route Fact that work is part of the regular business of

employer Fact that community regards those doing such

work as servants Belief by parties that there is a master and

servant relationship Agreement that the work cannot be delegated

b. negligent supervision of the employeec. negligent training

2. Nuisance

Consider economic objective: (do we want to encourage private bargaining – see Coase theorem for determination)o Social utility maximization Negligenceo Economic efficiency maximization SL

Consider: Tort is concerned with compensation… so if there is reciprocity/implied compensation (NL) how do we compensate victim?o Posner: activity level distinction don’t ask about implied compensation…only the activity’s value

4 outcomes:o No Nuisance D enjoins P o Nuisance P enjoins D + past losses

(Injunction may encourage P to “sell” right to interrupt in private agreement)o Nuisance D compensates P

where unlikely to bargain in private, allows the court to compensate for future damages in advance) (gives D the choice between stopping action and paying – D’s hand formula)

o Nuisance P compensates D allows P to pick whether enjoining D is worth the cost – P’s hand formula) i.e. real estate developer who encounters gross

cow lot next to land TWO WAY TO DETERMINE WHETHER THERE IS A NUISANCE

o Bramwell/Bamford: strict liability only NL if reciprocalo Carpenter : Negligence NL if benefits outweigh harms

Method 1: Bramwell/Jost Strict Liability –Esque Theoryo Ask:

Is this an activity we want to deter? Is is an uncommon, not ordinary use of land?

(EXCEPTION) common uses/reciprocity NLo Bamford : brick making is not reciprocal(is this common use) and causes harm Lo Jost : nonreciprocal pollution turning crops white L

(OLD RULE) R § 826 "Gravity" of Harm and "Utility" of ConductAn intentional invasion of another's interest in the use and enjoyment of land is unreasonable under the rules stated in §822, unless the utility of the actor's conduct outweighs the gravity of the harm.R2d § 826 Unreasonableness of Intentional InvasionAn intentional invasion of another's interest in the use and enjoyment of land is unreasonable if

a) the gravity of the harm outweighs the utility of the actor's conduct, orb) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible

*Corporation Economic value is irrelevant if harm (probably no reciprocal when compared to a person) Check §826 is it useful?

o If Harm L for cost incurred (economic utility maximization theory: you want the least cost/harm possible in society.) I.e. Eminent Domain (govt must compensate for taken land: turn harm into dollars to minimize loss)

o If company/business If you impose harm, then you should favor that harm in as a cost and build that into your business model. If costs outweigh the profits/benefits probably don’t do the action

o (Equitable distribution): IF this is truly a valuable activity, you may keep less profit at the end of the day, and your neighbors get more of the ie, rather than none

Consider remedy conversation o Injunction + bargain or monetary compensation aloneo P wins more often than not (entitlement given to neighbor)

Method 2: Carpenter (cattle lot) Negligence Theory (High social value )o Is this a care-level decision beneficial activity? (See Magrine: dentist)o Hand Formula esq: Do the harms outweigh the benefits? (See Carpenter: calling a cattle ranch a nuisance is too burdensome on

industry since P chose to move there when state is sparsely populated) What are the reasonable alternatives?

Loss of effectiveness, financial infeasibility What are the reasonable precautions?

Balance the economic/social benefit and value of the activity against the harm:o If benefits > harm NL (social maximization theory)o If reasonable precautions are taken + value then weighs in favor of NLo Don’t have to treat harm as cost of business

D wins more often than not Industry takes more of the pie.

E. Causation (Actual Causation)1. Cause in Fact: (‘but-for’ causation)

i) Rule: 50% rule – given harm, is it more likely than not that it was caused by the D’s negligence; negligence more than doubled the background risk;

1. Example: 60-40 example (See Grimstad: background risk of lack of swim = higher for lack of buoy negligence)ii) (MED MAL EXCPETION) Loss of chance: Even if the total chances of survival are below 50%, a negligent Defendant is liable for the

reduced chance of survival directly caused by the negligence; (See Herskovits)1. Frame: Injury = loss of chance of survival, not death2. Policy: Don’t want to allow physicians to escape standard of care bc patient is likely to die

iii) ASK:1. Step 1: Was there a standard of care/did they have a duty? HAND formula (Carroll Towing)/ Custom (Medical)

(a) State alleged negligence (P: broad, D: Narrow)2. Step 2: Would due care have made a difference? Causation

(a) (causation established if Y/(X+Y)> 50%, where X = background risk, Y = D’s negligence) in 50 simulations, is D’s negligence the cause of 51+

(b) or But-For test AKA Substantial Factor (Preferred language) (Given the harm was it more likely than not caused by D’s negligence?)

3. Step 3: Is negligence more likely than not cause of death in relation to existing background risks?4. Policy: Does imposition of liability impact deterrence or standard of care incentives for Ds?

2. Alternative Liability: cases that need exception to prevail over preponderance of evidence requirement (Burden shifting)iv) Summers exception: If all defendants acted negligently in a way that brought/could have brought about the harm it becomes the

burden of each defendant’s to prove their innocence/did not cause injury; burden shifting from P D; 1. Fewer defendants – more likely to find to find alternative liability;

(a) See Summers : 50/50 chance one of the Ds is the negligent harmer, but both were negligent2. Successfully identity that all parties are possibly negligent?

(a) if two Ds and can’t figure out which one caused accident look for negligence in conduct

Alternative LiabilityR2d Torts, §433A Apportionment of Harm to CausesIllustration 3. Five dogs owned by A and B enter C's farm and kill ten of C's sheep. There is evidence that three of the dogs are owned by A and two by B, and that all of the dogs are of the same general size and ferocity. On the basis of this evidence, A may be held liable for the death of six of the sheep, and B liable for the death of four. R2d Torts,§433B Burden of ProofIllustration 10. Over a period of three years A successively stores his furniture in warehouses operated by B, C, and D. At the end of that time A finds that his piano has been damaged by a large dent in one corner. The nature of the dent indicates that it was caused by careless handling on a single occasion. A has the burden of proving whether the dent was caused by the negligence of B, C, or D.

(b) See Litzman: Fire cracker; only 2 possible sources, desire to deter ultra hazardous activities—if they can’t prove innocence, then maybe they need better conduct anyways

3. No requirement that D be in a better position or have greater access to information than P (Summers ) v) Kingston exception: if sufficient cause of harm could have come from non-negligent source too, burden is on D to prove his

innocence, otherwise P can recover.(a) If find out that the other fire was of natural origin, then D not liable natural origin negates D’s negligence(b) May be NL if one source is actually disproportionately larger than D’s negligence source.(c) SPLIT IN AUTHORITY

(i) Some jurisdictions follow Summers strictly must show both D’s are negligent(d) Policy Concerns: Over deterrence? Unfairness to D? both are overruled by notions of unfairness to innocent victim

vi) NOTE: (RI) only one person negligent; (AL) all parties negligent.3. Who Done it/ Res Ipsa

i) Is Summers applicable? 1. Were all parties negligent and it is likely either is responsible? 50/502. Should D be able to prevail over MOL/SJ motions?3. More unlikely to be a strong case if more than 2 Ds

ii) Is Ybarra applicable?1. Is there an unknown negligent actor who caused the harm?2. Is there a concern over conspiracy of silence (frequent collaborators, possible friends…)?3. Is each in a position to see what the others were doing?

(a) Ex. no --> turkey cooking problemiii) ** Consider Kingston: If both are sufficient causes…but rare.

4. Market Share Exceptioni) To apply, P must enjoin largest share producers burden is shifted to D’s to exculpate otherwise must contribute market share % to Lii) Is Sindell applicable? Ask:

1. Is there a time lapse?(a) If harm that comes from negligence comes many years later, the court is a bit more sympathetic to P's difficulty in

proving baseline preponderance of evidence expectations. 2. Is there the inability to identify manufacturers?

(a) if consumers P are not in a good position to know/identify the supply chain.3. Are there identical chemical formulations?4. Is there a signature disease?

(a) Is the "drug" in question the sole, direct cause for the injury?iv) Did P enjoin the largest market share defendants/manufacturers?

1. Consider which market share is being calculated.v) Policy:

1. Seems fair/just to allow P to recover without preponderance AL/market share = large departures from traditional tort2. If P could not recover from injury from untraceable products, then there is a weak incentive to adhere to proper warning

labels/manufacturingii) Concerns:

1. Most court apply national standard what if market share in forum state is actually super low

F. Proximate Causation (is P’s harm too attenuated from D’s actions to make sense?)

1. Foreseeability plays in the “negligence” prong if the harm is unpredictable, then PL might be much smaller than Bi) Type of Harm:

1. What was the alleged negligent act here? (See Doughty) Frame: P (broad set of risks) D (Narrow)

2. Is the harm foreseeable i.e. part of the calculus (i.e. risks, or PL) that went into us calling D negligent in the first place? If yes, courts will probably find proximate causation.

(See Wagon Mound No. 2 no contributory negligence for innocent victims, stronger arguments of foreseeability) Manner does not matter if foreseeable. (See Daniels: rat on fire) Foreseeable type of force? See (Colonial Inn)

If No no proximate causation Element of professional negligence: (See: Wagon Mound No 1. reasonable man would not expect oil to catch on

fire in water; P were dockowners) (See Price : missing train stop, burning lamp)

Distinction bw completely unforeseeable and low probability Unforeseeable = didn't even consider it, has no assigned probability, No proximate cause Low probability = D's negligence causes bridge to collapse, P can't use bridge to get to doctor

o See Steinhauser : mental break after car accident Did D’s negligence increase probability of the type of harm occurring?

NL See DiPonzio: gas station policy didn’t aim to protect against accident risk4. Policy:

Deterrence function of tort law = how can we hope to deter bad behavior that a reasonable person would not even consider. Fairness: similar rationale.

R2d § 29 Limitations on L for Tortious Conduct (Must be connected/foreseeable)(an actor’s liability is limited to those physical harms that result from the risks that made the actor's conduct tortious.Subsequent Harms from negligenceR (2d) § 457 Additional Harm Resulting from Efforts to Mitigate Harm Caused by NegligenceIf the negligent actor is liable for another's bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the other's injury reasonably requires, irrespective of whether such acts are done in a proper or negligent manner. (Scope: Negligent part is not liable for misconduct that is "Extraordinary and outside such risks normally associated with medical/surgical/hospital treatment")R (2d) § 460 Subsequent Accidents due to Impaired Physical Condition Caused by Negligence If the negligent actor is liable for an injury which impairs P’s physical condition the actor is also liable for harm sustained in a subsequent accident which would not have occurred had the other's condition not been impaired, and which is a normal consequence of such impairment.

ii) Extent of Damages Eggshell Skull Rule: Take D as you find him, if harm is foreseeable, no escape just because extent was not

(See Colonial Inn: egg shell building) others: Kinsman, Vosburg, Argue both sides: (see Daniels: rat on fire case)

Note: : Polemis is NOT good law Direct Consequence Theory: “once the act is negligence, the fact that its exact operation was not foreseen is immaterial.

2. Intervening Causea. ASK:

i) Is this a harm that was fundamentally increased by the negligence? 1. Ex. Trolley: if the tree goes down immediately, speeding/not speeding does not fundamentally change the fact that the tree will strike

the trolley. So D would have to pushback that the tree didn't fall/wouldn't fall immediately. Such that a non-speeding train would have the time to see and react to the falling tree in a way that a speeding train could not.

2. See Daniels : L negligence supplied a dangerous situation where gasoline was very likely to come into contact with a flame. 3. NL See Watson: unforeseeable human wrongdoing

ii) Human agency? 1. Pridham Rule (Third Party Medical Liability: Are these foreseeable medical consequences, even if negligent outcome is not?

(a) If L for injury L for subsequent harm if third party negligently compounds harm, (R2d§457, 449)(b) EXCEPTION: Gross negligence breaks the proximate chain i.e. nurse kills you with overdose on purpose

2. City wrongdoing(a) Where negligence = prox cause (see Carterville v. Cook : missing railing)(b) Where criminal human agency breaks chain (see Alexander: criminal throws P into pit)

3. REFLEX EXCEPTION: No volition b/c threat to D’s (See Scott v. Shepherd: Squib firecracker – no prox cause bc reflexive action)iii) Criminal Acts

1. Foreseeability question: Did the act of negligence fundamentally increase the likelihood of crime that caused damage? Did D's negligence create an especially enticing situation for crime?

(a) Yes L (See Brauer ) (b) connection phrasing: thus, D's negligence created a more enticing opportunity for thieves and they acted on it.

2. Consider what is the nature of the intervening criminal act?

R 2d § 448 Intentionally Tortious or Criminal Acts Done under Opportunity Afforded by Actor's NegligenceThe act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.R 2d § 449 Tortious or Criminal Acts the Probability of Which Makes Actor's Conduct NegligentIf the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.

(a) Where criminal human agency breaks chain (see Alexander: criminal throws P into pit)(b) See Watson: purposeful arson (No prox cause), accidental fire (prox cause intact)

3. Is the act a foreseeable act in the community? i.e. petty theft v. murder/arson … consider the community(a) Could this have just as easily happened without the initial wrongdoing?(b) Is mischief is foreseeable?

(i) YES when it comes to dynamite (Clark)(ii) YES unlocked bulldozers (Richardson)

4. What was P’s own conduct?(a) See Roman Prince NL b/c P chose to stay on damaged boat

5. Is this actually an independent NOT an intervening cause? i.e. still prox cause(a) See Thompson: distracting clowns = dif negligence but doesn’t break.

6. What is the how? Was the action or manner foreseeable? <-- Needs to be yes.3. Type of Plaintiff (Palsgraf Factors)

1. Was P foreseeable?2. Was P in zone of danger?

o Factors to consider: must be at the least something without which the event would not happen Whether there is a natural and continuous sequences between cause and effect Was the one a substantial factor in producing the other? Was there a direct connection between them without too many intervening causes? Is the effect of cause on result not too attenuated? Is the cause likely in the usual judgment of mankind to produce the result? BY the exercise of prudent foresight could the result be foreseen? Is the result too remote from the cause (time and space?) Greater the distance the more surely other causes will intervene to affect the result.

G. Products Liability

1. Manufacturing Defects when a product comes off the assembly line out of specifications (reasonableness test SL if found)i. Why SL?

o Emphasis/Focus on manufacturer’s actions reasonable inspections/care for unassuming consumersii. Ask:

o (KIND OF PRODUCT) i. Is this a product or service?

1. Consider: nature of the services, utility of and the need for them2. L (See Newmark v. Gimble: salon = non-essential service provided by salon who applies the purchased

product)

(MINORITY RULE) R2d § 402a Special Liability of Seller of Product for Physical Harm to User or Consumer(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if(a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. NOTES: removal of privity requirement; Greenman suggests that bystanders can recover under SL too (maybe even a stronger case

for SL since bystanders don’t inspect the product ever…manufacturer/seller = best position.) Some jurisdiction reject bc requirement of “unreasonably dangerous”(MAJORITY RULE) R 3d § 1 Liability of Commercial Seller or Distributor for Harm Caused by Defective ProductsOne engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defectR 3d § 2 Categories of Product DefectA product is defective if it has:(a) manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product; (b) defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller and the omission of the alternative design renders the product not reasonably safe; (c) inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by reasonable instructions or warnings by the seller; the omission of the instructions or warnings renders the product not reasonably safe.(e) There is some jurisdictions/statutes that immunize nonmanufacturing sellers from SL to save legal resourceso Possible to immunize non-manufacturers only if:

manufacturer is subject to the jurisdiction of the court of P's domicile Manufacturer is not, nor is likely to become insolvent Court determines that is highly probably that the P will be able to enforce a judgment against manufacturer

3. NL (See Magrine: dentistry = social value/can’t be done at home.)ii. Is the item that caused the harm actually a product being sold?

1. No NL (See Keen: defective shopping cart is not SL)iii. (Food Item) (See Mexicali: bone in enchilada)

1. foreign substances and p gets hurt SL2. if natural substance then it usually comes down to whether the diner reasonably should have expected to find

the substance in the foodo (Type of P) Purchaser or Bystander?

i. See Greenman : SL for defective product they know will be used without inspection and can cause harm to any userii. Bystander has stronger case for SL no opportunity to inspect at all not in any position to know.

o (Causation) Did defect cause the harm?i. Did P misuse the product?

1. Invited misuse is NOT misuse (See Welge : peanut jar) 2. If P’s misuse is the sole cause NL3. If P’s misuse contributed to harm reduce damages

ii. (TIMING) Was defect introduced during manufacturing or sometime after?1. If seller EE only seller/person L2. Anyone involved prior to introduction of Defect = NL (Welge )

o (USED GOODS) Is D in a special position to change/know the manufacturing and marketing process?i. SPLIT IN AUTHORITY THOUGH ii. No NL (See Peterson: used car dealership)

1. (Consider: consumers have lower expectations for used goods)iii. Yes special relationship (See Nutting: HP reselling cars en masse)

o (RIL/ Access to knowledge) Is it extremely difficult for P to pinpoint source of D’s negligence? Lack of evidence? (Ybarra ) i. Does the accident itself speak to existence of defect?ii. NOTE: RIL/Ybarra is not perfectly analogous b/c the timing is staggered.

o (Loss spreading) Is D able to spread the losses if even a little negligent? i. Yes L (See Escola v. Coca Cola)ii. No NL (See Magrine: individual dentist)

o (Least-cost avoider) Is D in a better position to change the conduct decisions?i. Nonmanufacturing sellers in special positions L

1. Less connection weaker, but still holds for P unless rebuttedii. Not in a better positions NL See Magrine: dentist buying needles is not in a position to know latent defect

o (Deterrence) Is this a product we want to discourage from being marketed if defective?o (Incentives) Does tort law need to bolster market forces to change behavior?o (Warranty) Could still bring implied warranty, but this limits you to only the seller or anyone with direct consumer contact.

iii. Policy: Function of Torts:

o Creates safety incentiveso Encourages greater investment in product safety than does a regime of fault-based liability under which, as a practical

matter, sellers may escape their appropriate share of responsibilityo Discourages the consumption of defective products by causing the purchase price of products to reflect more than

would a rule of negligence the costs of defectso Reduces the transaction costs involved in litigation

Fairnesso Often injury is actually caused by D's negligence, but P can't prove ito SL allows deserving P to success notwithstanding what would otherwise be difficult or insuperable problems of proof

Economic/Cost-sharingo Consumers who benefit from products without suffering harm can share costs by increases in price

2. Design Defects (Negligence heavy/SL tinted perspective) (Split in authority: R3d risk utility test v. consumer expectation test)i. (NEGLIGENCE) Compare costs/benefits of design w/ reasonable alternative designs to determine if there is a design defect

o If your design has high benefits + high risks perhaps the benefits do not outweigh the riskso Esp. if there is an alt. design that those high benefits can be achieved by an alternative design that minimizes the risk

Policy: might be too forgiving of a small manufacturer who might be excused for ignorance of risk or for failing to take adequate precautions to avoid risk

ii. (SL) If design defect found SL for everyone involved in the distribution chain.o Liability for nonmanufacturing sellers/retailers are still SL for these products too. Even if negligence argument could be made

(retailers are negligent for picking this product to sell) assign SL. POLICY: (Consider Indiana Harbor/§520: is SL redundant/overly broad?)

iii. To determine, ASK: (D is held to expert in manufacturing industry standard)o Is the non-manufacturing retailer in a position to change behavior? Best position? See Nutting (HP reselling cars in large scale)o Is it a pharmaceutical drug or medical device?

(R3d §6, comment k: no design defect even if safer alternative, just needs to have enough benefits that physician can make the judgment call)

iv. Run split authority test:o METHOD 1: R3d Risk Utility Test (Majority) (See Dawson)

Purpose: Assess side defects/risks of product design. (NA for purposefully dangerous products See McCarthy: hollow bullet)

Step 1: Balance Risk Utility factors: 1) **Usefulness/desirability of the product, its utility to the user and public as a whole 2) ** Safety aspects of the product, likelihood and probable seriousness of injury Reasonableness of alternatives factors: (burden is on P to show)

o **Availability of a alternative product that meets the same need/not be unsafeo Manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or

making it too expensive to maintain its utility Obviousness of danger: (if very obvious, then maybe NL)

o User’s ability to avoid danger by the exercise of care in the use of its producto User’s anticipated awareness of the dangers inherent in the product and their avoidability bc of general public

knowledge of the obvious condition of the product or of the existence of suitable warnings or instructionso (Loss Spreading) Feasibility of spreading the loss for manufacturer i.e. cost/ insurance

Step 2: Whether a product’s design reflected the “state of the art” when it was made? Whether the danger created by a product’s design was “open and obvious”

Disadvantages: Jury competency and ability to actually assess risk (1/million risk harm happens…)

o Method 2: R2d Consumer Expectations Test (minority) (See Green) Ask:

Is it an obvious defect? (Implied assumption) Has the idiosyncratic consumer specifically chosen this product w/ this risky feature tradeoff?

(See Dreisonstok) Policy:

o Paternalistic tendency? External costs i.e. social costs of ppl only driving SUVs for safety concerns Disadvantages:

o (overly favorable to D) Allows escape for obvious, but dangerous defectso Leaves the task of determining competent/safe designs to consumers in torto (Overly harsh) For less obvious latent defect bc what consumers expect is a product that causes no harm

when IRL reasonable consumer would not necessarily expect all safety precautions to be taken in designo Expectations may lag behind tech advanceso Doesn’t account for harm to bystanders o Very amorphous can justify any jury decision

3. Failure to warn Defects inherent risks in design that D knew/ should have known about but that consumers were unlikely to recognize i. To determine ask:

1) If there was a warning, was it adequate? Is there a specific duty to warn “non-ordinary consumers”?

ASK: Hand Formula to find PL i.e. likelihood/seriousness of harm (§R3d)o (See Brown v. McDonald’s: Duty to warn if common/foreseeable allergy that is unexpected in product)

Split in Authority if warning exists. (MAJORITY) R3d: D cannot discharge ALL responsibilities through a warning

o Not everyone heeds warningso Momentary forgetfulness of workerso Some people have no discretion/choice over use of product with or w/o warnings.o Best party to avoid injuries is designer, not user.

(MINORITY) R2d, § 402 Comment J: if a warning is given, there is no design defect NL o Deference for personal autonomyo Policy:

a. Is this a better fact situation for ex ante (FDA regulation) or ex post (tort litigation)b. Would the act of labeling thwart the marketing of product? c. Does the requested label produce effective disclosure?

2) Was there common knowledge that would show no duty? (See American Tobacco: general health effects of cigarettes known, but not addiction) (See Liriano: Duty to warn not to remove safety guard from meat grinder, but perhaps not for originally guardless one)

3) (CAUSE IN FACT) Did the lack of warning actually cause the harm/ P’s misuse of product? (HEEDING PRESUMPTION) Can P rebut this presumption enough to prevail over SJ to get to jury?

(See American Tobacco: Duty to warn of unknown risk of addiction) Rationale:

o Public law flexibility for not meeting “more likely than not i.e. 50% likely” err on the side of imposing L in favor of aggregate users, even if minority would likely heed. (See Herskovits: loss of chance)

(REBUTTABLE PRESUMPTION) Can D show that this particular P would not have heeded such a warning? (See Graves: D gives evidence that P doesn’t heed safety warnings re: cigs w/ warnings)

4) Is it a pharmaceutical drug or medical device? Learned Intermediary Rule:

See Brooks v. Medtronic : only duty to warn physician of risks – best position to assess EXCEPTION: If direct to consumer advertising Duty to warn ultimate consumer too! (See Perez: NorPlant)

5) DEFENSES Any sense of contributory or comparative negligence? Misuse or ignoring of product ie rebuttable presumption

Manu is L for “foreseeable or invited misuse though”

ii. (POLICY) Concerns when tort law supersedes reg. (in support federal preemption): (ex ante regulation or ex post tort regulation) (inconsistent standard) “defective product” could be found to be so in one jurisdiction, but not by another jury (DETERRENCE) This makes it difficult for members of the industry to alter their design and production behavior in response to

jury verdicts in such cases response might well be at variance with what some other jury decides is a defective design (Jury competency) Concern that juries may not be properly assessing risk –risk reasonableness (blinded by sympathy) (Piecemeal litigation) encourages patchwork of regulation standards via tort law (Admin costs) Both have significant costs.

Policy Chart

(in favor of) Strict Liability Negligence Overall

Nuisance Objective: social utility maximizationAdvantages:

o (For P) Remedies available: o Injunction of future harm + damages

for past harm.o Damages for past + future harms.

Disadvantages:o Puts the onus on parties to come

together post-litigation.

Objective: economic maximizationAdvantages:

o (For D) Remedial benefit: o if utility outweighs harm, then

court will not impose injunction – only past damages if any.

Sense of implied/reciprocity here.Essentially, a choice between strong protection of property right (NL) or a weak protection of right (Lprice set by jury)

Products Liability

Objective: Ya’ll built this and sold it, do it well.Advantages:

o Encourages optimal deterrence o Manufacturing defects = always SLo Consumers are never in the best

position to assess these risks bc the expectation is each “reasonably designed” product will operate as such.

o Ability to loss spreadDisadvantages:

o Concern for over deterrence but this is a better false positive than protection of dangerous manufacturers

o High Admin costso Concern for jury incompetency to find a

broad and wide reaching decisiono Paternalism?? Should we take this

action bc consumers are dumb?o Harsh for non-manufacturing

distributors

Objective: A bit more deference to market/ reasonableness of designs (R3d in comparison to alternatives)Disadvantages:

o Concern for inconsistent standards if controlled by state law

o Inability to fully further tort purpose of deterrence – no clear way forward

o High admin costso Concern for jury incompetency for

inconsistent judgmentso Forgiving for small manufacturers

with “less” knowledge of risks

o Consider whether the decision or situation calls for ex ante or ex post regulation?

o Some issues are better regulated by ex ante i.e. wide ranging behavior v. specific labeling for uncommon things.

o Paternalism v. deference to market forces

o Court is reluctant to allow companies to use contracts to substitute for tort responsibilities.

I. TORTS Backgrounda. Main concern: the rights of private parties to obtain monetary compensation from those who have caused them injury or damage

II. Functions of Tort Law:a. Corrective Justice

i. Core: individual injurer directly compensates an individual victim with injurer’s own moneyii. As connection between injurer and victim become less direct, so does corrective justice notion

EX. If injurer is a corp., then ultimately the shareholders, employees or customers may bear the cost of compensation.b. Jury function as “hive mind”c. Optimal Justice (corrective justice)

i. Deter excessively risky activity so that only those losses worth avoiding are avoidedii. Consider: certain losses are not worth what it would take to deter themiii. Ways to calculate worth: economic approach or social benefits gained

d. Loss Distribution (promoting broad distribution)i. i.e. developing rules of law that permit the imposition of tort liability on businesses and institutions that can distribute their liability through

purchase of insurance or by raising the price of productse. Compensation

i. Gives society security to promote willingness to take socially productive risks that we would not otherwise take – knowing that if we suffer certain kinds of injury, then compensation for that injury may be forthcoming

ii. Victims are provided compensation in order to serve the other goals of tort lawf. Redress of Social Grievances

i. Right to sue I tort promotes the redress of social grievances, esp against large, impersonal institutionsIII. Policy Arguments

a. Economics (Calabresi/Posner)i. Purpose of tort law = minimize cost of accidents (combined cost of accident + precautions +litigation)ii. Incentive precautions

b. Corrective Justice (Aristotle/Kant)i. Purpose = produce justice between P/Dii. Nuanced by duty to community, duty to compensate if obligations are breachediii. Moral enterprise

c. Regulation of compliance errors in use of technologyi. Advances in tech tend to increase number of claimsii. May reduce the magnitude of claims, but not the quantity

IV. International Tortsa. Battery

i. Voluntary Act Vosburg v. Putney (Wis. 1891)

o Tags: unlawful intent, unforeseeable extent of harm, egg shell skull o Facts: Putney kicks Vosburg in the shin after class is called to order, exacerbates a previous injury and Vosburg suffers severe injuryo Rule: The intent is unlawful if the intended act is unlawful. (consider context/setting)

o Holding: The kick was unlawful, and thus the intent is unlawful because class was called to order and back in session. The situation may have been different if this had occurred on the playground and was not malicious nor negligent.

Knight v. Jewett (Cal. 1992)o Tags: unintended battery, implied consent, o Facts: Playing touch football, D is playing rougher than P expects, D unintentionally steps on P and hurts her finger, injury requires

amputationo Holding: D did not mean to cause contact, let alone harmful contact therefore there is no cause of action for battery. o Possible Arguments:

P: D intentionally meant to touch even if he did not intend to harm her; she had repeatedly asked D to be gentler D: There was no unlawful act, this was a contact sport game, which afford implied consent to at least some contact

ii. Objective Mindset White v. University of Idaho (Idaho 1989)

o Tags: unlawful touch, consent, objective standard, unintended battery, o Facts: Prof touches student without consent during at home lesson, resulting in severe medical injurieso Rule: The intent is unlawful is the act is unlawful, and this is judged by a reasonable person objective standard. One must ask what

the reasonable understanding between a teacher and pupil would be in an at-home class setting. R §18: Battery: Offensive Contact

o Holding: An act without consent can be an unlawful contact if a reasonable person would also find the contact harmful or offensive at the time of the incident.

Situation would be different if the student/teacher had previously been fine with this contact, etc… HYPO (substantial certainty):

o A child pulled a lawn chair from under a woman and she fell. o Holding: Child intentionally set forth chain of events that resulted in an injury. o Rule: If you do an act that can be reasonably and foreseeably assumed to result in injury, that would constitute intent to cause harm.

There may be a different bar of reasonableness here though since this is a child. iii. Involuntary Act

Polmatier v. Russ (Conn. 1988)o Tags: insanity, battery, encourage caretaker action, duty to third person, involuntary, free willo Facts: Russ, paranoid schizophrenic, shoots and kills P under delusion of threat (criminal case: NG by reason of insanity)o Rule: mental incapacity i.e. insanity, if the manifestation of will exists, does not negate volitional intent. o Holding: Although Polmatier was under delusion at the time of the murder, he still intended harm (was not involuntary action). This

was not a reflexive action nor in relation to imminent danger. Policy:

allowing torts liability to be circumvented for all insanity please might dissuade accountability by non-insane persons Duty to third party: To hold insane person accountable, also includes those interested in his estate and those

individuals owe a duty of prevention, to take care that this insane person can’t inflict harm Balancing if it would be worse to deny a victim recovery w/ the interest of insane person’s estate (capability to pay)

Laidlaw v. Sage (NY Ct. of App. 1899)o Tags: involuntary action, imminent danger, reflex

o Facts: Sage intentionally moves another clerk b/w him and bomb, which Norcross subsequently detonates killing him and injuring only the clerk, not Sage

o Rule: An act or omission done or neglected under the influence of pressing danger is done involuntarily and thus, is not a battery. (fails the volitional/voluntary prong.)

o Holding: Considering the deadly threat, the act was an involuntarily, reflexive action to imminent danger. Sage might not have had time to consider moving the clerk, it was reflexive to move away from a threat.

Consider:o What if terminally ill person kidnaps another and harvests their organs?

Holding: Yes, they would be liable for battery because they had time to consider and deliberate the volitional act of harming another individual.

iv. Transferred Intent A attempts to hit B, contact instead comes to C; C may sue A for battery (transfer of intent) Keel v. Hainline

o Tags: transferred intent, battery, unlawful intent, o Facts: While teacher was late to class, several children engage in board eraser throwing, a non-participant gets hit and loses an eyeo Rule: The intended target for harmful contact does not matter if the intended contact is actually made to another individual. If the

act is unlawful, then the intent is unlawful. o Holding: Hainline is liable to Keel because he intended to commit a harmful contact against a different student, and hit Keel instead.

Keel was not a participant in the horseplay, whereas the other participants may have impliedly consented by their affirmative conduct.

b. Consent (Affirmative Defense)i. 3 versions of consent No consent; Specific consent; Consent granted, but procured through fraud

R § 892 Meaning of Consento Willingness for conduct to occur -can be manifested my action/inaction and doesn't need to be communicatedo Reasonably implied consent is as effective as explicit consent

Apparent consent: NL-- if action/non-action of A could be reasonably understood to be consento Effect of Consent

If you consent no recovery If you consent to particular conduct, but B goes beyond that agreement maybe recovery

Mohr v. Williams o Tags: consent, specific consento Facts: P consented to surgery on her right ear, the surgeon operated on her left ear because he realized it was actually worse while

in surgery o Rule: The patient has the legal right to be the final arbiter for non-life threatening medical procedures, and thus consent must be

expressly or impliedly given before a surgeon can operate. The right to the inviolability of the person is a legal cornerstone. The left o Holding: Consent is necessary for any change or new medical procedure for non-life threatening procedures. Thus, left ear condition

was not life-threatening and had not been an issue for P previously, and the surgery made it worse. o Possible Arguments:

P: Doesn’t matter about the risks, it was up to P to hear and decide the risks; Contact was offensive b/c no specific consent

D: P’s GP was present and gave consent; P would have needed the surgery anyways; Risks associated with anesthesia (which was high at that time), the double anesthesia might be too much of a risk

Grobowski v Quigley o Tags: specific consento Holding: "ghost surgery" (where a different dr than one initially consented to for surgery performs the operation) is only permitted

when the situation is an emergency or life threatening.o Rule: R § 52 - consent given to one dr may be reasonably interpreted to include the acts of another (most relevant to

ER/anesthesiology) Brzoska v. Olson

o Facts: Dentist dies of aids and his patients sue for battery b/c they would have not consented to surgery if they knew; allege that they consented to a doctor without HIV

o Holding: Patients wanted dental treat and that’s what they got. There is no connection between their specific consent and the nondisclosure of HIV.

o Rule: Battery is “touching of a substantially different nature and character than that which the patient consented to” Neal v. Neal

o Facts: P sues husband for battery b/c he was involved in an affair, if she would have known, would have not consented to sex (issue of consenting to sex v. consenting to sex with unfaithful partner)

o Holding: Appellate court ends up reversing for P, but this may be for policy reasons. Outlier. o Possible Arguments:

D: fidelity is not related to sexual encounters P: I consented to sex with a faithful husband

c. Trespass (interference w/ one’s exclusive right to property)i. Elements of Trespass

Intent Entry without consent Damages/Harm (can be dignitary/nominal) Causation (harm caused by D’s trespass)

ii. RULE: Generally, D is L for all harms that occur during the trespass even if D causes the harm by accident is non-negligently. iii. Desnick v. Am. Broadcasting Co. (Posner)

Tags: consent through fraud, misrepresentation, trespass Facts: D trespass his Wisconsin and Indiana offices to get footage for their program Holding: Dismissed trespass counts b/c activities of the office were not disrupted and no invasion of a person’s private space; this was

professional and offices were open to anyone needing ophthalmic serviceso Ask: Is the nature of the consent (medical visit) connected to the nature of fraud (negative intentions to expose office)?

Rule: Trespassing is entering on another person's land without consent. Consent to an entry is generally valid even if the entrant's intent if known to the property owner would cause understandable reasons to revoke consent.

o Exceptions: Privileged trespasses designed to promote competition. Policy: Concern by judges to not make common place activities tortious

iv. Cohen v. Smith

Tags: misrepresentation Facts: woman is clear that she only wants females in room while having C-section, sues when she finds out a male nurse was present Holding: She wins on her battery tort for misrepresentation that she would have an all-female team. The specific demand was key.

v. Pegg v. Gray Tags: proxy, trespass Facts: D allows dogs to chase foxes onto P’s land and causes cattle to break fences Holding: The owner intentionally sent the dogs or at elast reasonably knew that the dogs might go on P’s land without prior consent, and is

thus liable for damages. It’s as if owner sent dog in lieu of himself, in which case it would clearly be trespass. Rule: Flexible standard of intentionality and is ruled by a likelihood standard.

o Ask: Can one reasonably assume that it is likely for trespass to occur by these acts?vi. Malouf v. Country Club

Tags: trespass, Facts: Ppl hit golf balls onto P’s land and cause damage; P sues golf course b/c they don’t know who ppl are Holding: There is no reasonable expectation that damage might happen Rule: There is a higher standard of intentionality for indirectly caused harm by humans, that are outside of one’s control. Reasonable

awareness of risk element. vii. Consider

What if golfers mistook hanging laundry on P’s land for the flag on the green, shot and hit P’s house. Holding: The golfers would be liable (§164) because there is no excuse or ambiguity in their intent to hit the ball in that direct. Mistake of fact

or law is irrelevant when determining trespass liability. d. Defense of Person and Property

i. Elements of Defense 3rd party danger (storm/dog etc) D tries to escape/reacts to 3rd part and harms P

o Initial aggressor, initial victim, 3rd party Party A is about to harm Party B (trespass/battery) Instead of receiving this harm and suiting A, B decides to take self-help and harms A to prevent initial harm Part A sues B for harm B claims actions were privileged by defense

ii. Key Elements Subjective Belief in Proportionality (extent of force is justified by level of danger being faced)

o Deterrence: Promote certain behaviors, deters extreme behaviors though (fairness spectrum)o Concern for escalation (if the initial aggressor knows the victim can use some force to protect himself, the aggressor may be

deterred from aggression court is wary of excess cost/forceiii. Katko v. Briney

Facts: D sets up spring gun to deter trespassers from entering his storage home. He already set up no tress pass signs. P sues for damages when he tried to trespass.

Rule: The law places a higher value on human safety/life than on personal property. Holding: A spring gun always entails lethal force that will be discharged indiscriminately.

o (Presence) The law will note permit the legal use of force without conscience intent, if the individual was present with the gun, perhaps they would not shoot an innocent trespasser.

o (Proportionality) Theft is a minor crime and does not warrant deadly force. iv. Wright v. Haffke

Facts: Wright and accomplice enter Haffke's grocery store; they knock him over and rob him; Haffke shoots P as he leaves Rule: In a serious crime i.e. robbery, a person may use a firearm to prevent a theft of property. Notion of proportionality. Holding: Where the perception of threat is higher because of serious crime/physical threat, deadly force is slightly more permissible. That

being said, the law places a distinction between prevention and reaction. v. Woodbridge v. Marks

Facts: D kept 2 dogs to protect parts of his home ; home was unoccupied at the time of the incident; P went to find someone supposedly working in the barn, couldn't see bc it was night and strayed from path and got attacked by dogs

Rule: The mere keeping of a ferocious dog for the purpose of defending one's property is not itself unlawful, and as long as the dog is kept reasonably within its purpose, a trespasser, unlawful or lawful, cannot recover damages.

o The dogs have their own instinct and given purpose, a gun does not. (companionship, protection)o Dogs do not always entail lethal force.o The dogs would reasonably attack whether or not the owner was physically present.o Dogs give notice-barking!

vi. Hull v. Scruggs Facts: D's dog continually goes onto P's land and sucking all P's birds' eggs; D repeatedly chased the dog away and notified owner; eventually

he shoots and kills the dog Rule: If D has taken reasonable efforts to 1) drive dog away, 2) confine dog while in the act 3) notify owner to no avail, it is reasonable for him

to shoot and kill the dog.o Dog may be more valuable, killing dog here is permissible b/c exhaustion of deterrence means repeated offenses and priviliege of

roperty is to ownero Cost benefit of alternatives fence v. killing dog, litigation v. killing dog

Holding: The dog has repeatedly and instinctually returned to this property to commit a singular act. If the dog were to return, it would be for a single purpose.

o Distinction: In Katko, there was no definite determination of who might enter. And also, D still shot the gun himself and would have reasonably done so if he caught the dog, but that's hard so just shooting the dog on sight is reasonable.

vii. Kershaw v. McKwon Tags: Relative value of property in regards to protection rights, harm property to protect property Facts: D shot and killed P's dog who was attacking his goat; Rule: Relative value of property i.e. single owner theory; what is the more economically efficient decision, meant to minimizes total amount of

costs incurred by both P/D in property v. property situationso To break tie: usually the D; if dog is more valuable, it would be impermissible to kill dog dog to protect goat.

Holding: If dog is worth greatly more than got, D should be L. Otherwise, no. Essentially, sum of economics divided by market value. o Consider: Single owner theory/ lowest amount of harm

V. Defenses to Intentional Torta. Private Necessity

i. Ploof v. Putnam Facts: D owns an island with a dock attached. In a storm, P attaches his boat to D’s dock and D’s servant unmoored the boat. The boat was

destroyed & P suffered injuries. Rule: Necessity will justify entry upon land; value for preservation of human life

o Consider single owner theory: cost of life v. boat/dock Notion of reciprocity: what would one hope if situations were switched? Degree of affirmative action here that bolsters the unlawfulness.

Holding: P had private necessity here, there D is liable. o There is a difference between affirmatively denying privilege v. failing to acto Consider duty element.

ii. Rossi v. DeLDuca Facts: Two girls are running away from dog, enter into D's field where she is attacked by a different dog; State statute (Dog owners are liable

for damages unless the person was trespassing, teasing or abusing the dog) Rule: One is privileged to enter another’s land to prevent serious harm Holding: D is liable because P was not trespassing -- private necessity to enter land to prevent serious harm

o Consider: Tension with Woodbridge owning a dog opens one up to some liability, but the legal distinction comes from how we

distinguish the person the land Great dane that attacks Rossi = Ploof’s agent denying use of necessity

iii. Vincent v. Lake Erie Transportation Co. Facts: D owns a ship and a storm came so the vessel stayed attached to the P’s dock. Because of this, the storm caused the ship to damage

the dock. Rule: If one has privilege and takes you, you are also liable for any damages.

o One can make a decision to decide if they should save one’s property for another; effort to achieve “lowest cost outcome” Holding: P allowed D to use private necessity and in doing so, D damaged docks and should thus pay damages.

o Dissent: damage done to the dock could not have been avoided in the exercise of due careo Economic Analysis:

Cost of options (damage $100 boat v. $110 dock) single owner would choose least cost option and pay damages aka cost minimization

Burden is on boat owner to choose his own least-cost option (is in best position to decide value)iv. Texas Midland Ry. Co. v. Geraldon

Facts: Family was at a station that closed. Railroad agent sent family out into the rain. Family told agent it was raining and wife would get sick, agent refused to let them stay. Wife did get sick.

Holding: o For family; the agent had sufficient evidence to believe that wife could have gotten sick b/c of weather.o Analogue to Ploof: the severity of the situation (3rd party storm) that could have led to reasonable assumption of resulting injury

v. London Borough of Southwark v. Williams Facts: Homeless family became “squatters” b/c they had no other option & govt. housing dept. wasn’t able to help.

Holding: o No imminent danger or threat -- therefore no "necessity"o Squatters = not temporary situationo For London Borough; “If homelessness were once admitted as a defense to trespass, no one’s house could be safe.”

Policy: Admin ease/ public policy concerns for deterrence of petty crimesb. Public Necessity

i. Action based on a claim of benefits flow to many individuals without having to pay damagesii. **Split jurisdiction/authority

o Some sovereign immunity – can’t sue govt for torts generally…maybe a takings claim for just compensationo Others allow recovery

iii. Surocco v. Geary Facts: Plaintiff sues mayor who ordered house demolished to stop progress of fire Rule: Private rights of individuals yield to the interests of society Holding: For D; evidence establishes the blowing up of the house was necessary since the house would have burned by the fire anyway

iv. Struve v. Droge Facts: D was the P’s neighbor. D saw fumes coming from P’s apartment. D knocked on P’s door, didn’t hear response & broke it causing

damages to P’s home. Rule: Doesn’t matter if assessment is reasonable or unreasonable if you’re wrong, you’ll pay Holding: For P; could have potentially been a case of public necessity but wasn’t b/c no danger

o Policy: Deterrence of intrusions/destruction without reasonVI. Duties and Limitations

a. Backgroundi. Default Rule: no duty to rescue

Considered episodically – not a continuing duty to always treat patient/rescue victimo Nonfeasance = doing nothing (no liability)o Misfeasance = doing something carelessly (maybe liable)

Previous duties are discharged and restarted in each scenario EXCEPTIONS: Chronic medical care scenarios. Generally, physicians can’t just walk away from relationship…they have a reasonable obligation

to set up alternative channels of care

ii. Policy: designed to protect the “normal” person who might not actually be able to successfully rescue someone Ames (endorses a compulsion duty rule with exceptions for dangerous situations) Epstein (rejection of compulsion rule b/c of the difficulty of drawing the line)

o Once forced exchanges, regardless of the levels of payment, are accepted, it will no longer be possible to delineate the sphere of activities in which contract or charity will be requires in order to procured desired benefits (CONTRACT) and the sphere of activity in which those benefits can be procured as a right (TORT)

Landes/Posner (imposition of liability became more discussed as social politics grew in prominence)iii. Established MOL by judgeiv. HYPO: Half-attempted rescue

1) Michael Phelps walks past person drowning in lake. Person gets his attention. Phelps agrees to help and goes to find a rope or some swim aid for the person. Somehow he forgets to bring something back to person and they drown.

o If so, there was a duty at that point and thus, there was a breach of duty for failure of actually helping.o By agreeing to help, Phelps decreases the likelihood that someone else will help him.

2) Rescuer intends to pull them into shore and we get closer to jagged rocks and person gets smacked with some rocks and gets injury.o Plaintiff:

You had a duty--> If you attempt a rescue negligently, you must do so reasonable and if not, may be responsible for harm that results --> go back to hand formula to determine if there was gross negligence. (B<PL)

This would be a jury question.o Defendant:

Plaintiff is not worse off, the state has not changed if not for the better. If we find there is no duty, the judge makes the decision and the case ends. If we find you didn't have duty--> not responsible.

o Good Samaritan laws might protect rescuer. Specifically, for physicians out in public, not in the work place different standard than in the workplace.

b. Affirmative Actsi. Yania v. Bigan

Facts: Yania, coal mine owner, visits Bigan’s coal mining operation; Bigan goads Yania and Yania jumps into the mine/drowns; P sues for failure to warn of dangerous condition and for failing to rescue

Holding: For D No duty, Yania was an adult with his wits about him and knew he shouldn't jump in the water. Acknowledges that goading might be a wrongful act, but rejects that goading was the sole reason for Yania's danger… he put himself in that situation.

o Bigan did not cause this situation by goading-- Yania made an independent decision and is responsible for his own actions No misrepresentation of land/depth of water <-- could be reframed as landowner//guest relationship to maybe get to a duty

though Rule:

o (§ 321/322 restatement trigger situation -- creation of danger or peril creates a duty to of rescue; determination of creation is important)

Potential Arguments:o Duty to prevent § 321 Affirmative act: goading put P in the dangerous situationo §322 Goading put Yania in situation of peril thus you had a duty to rescue them after you put them in the situationo Response: an adult can probably take more responsibility than the goader for his own actions and creating his own peril. If this was a

child, perhaps not. HYPO: Suppose Bigan advised Yania to go ahead and jump into water while knowing that it was more shallow than appeared.

o Element of special relationship between host and guest and taking reasonable care of person coming onto land (ownership of land is relevant)

o Possible arguments for p: Battery -- intent to cause offensive (non-consensual) contact, if you do something with substantial certainty will cause

contact and that happens, then it could be battery

If you know of some dangerous situation on your land, you have a duty to disclose that… here you should disclose the danger especially if by your own act you put the guest in a situation that is directly connected to the situation

o Possible argument for D: Didn't know how deep it was… careless misrepresentation of depth/ careless disclosure

c. Undertakingi. Hurley v. Eddingfield

Facts: D was going through labor complications; D was family physician; P was ill and sent for D; messenger informs D was P's state, gives him fee and tells him no other physician is available and that P relied on him for attention; D refused to go to P's aid even though no other patients were requiring D's immediate service

Holding: For D There was no special relationship or duty here. By being a state licensed physician, you are not required to practice on other terms than one may choose to accept.

Rule: No Duty for physicians when there is an attenuated reliance only. ii. O’Neill v. Montefiore Hospital

Facts: P's husband was suffering from symptoms of heart attack, the hospital tells her they don't accepts patients with their insurance plan; calls a doctor who does who after discussing symptoms, advises O'Neill to go home and return to hospital in the morning; wife asks nurse for immediate help, and they refuse; when P gets home her husband dies

Holding: For P no duty to treat, but once doctor started treatment/consultation that created the duty to treat reasonably and there was a breach because P ended up in a worse state post-discussion/recommendation

o Policy: Chilling concerns for physicians not to just give advice, but since the detrimental reliance argument is so strong… the balancing of concern over telecommunication

Rule: (MED MAL) once physician starts treatment --> duty to do so reasonably/creation of med mal liabilityo If the physician gives some recommendation, there is always the risk of substantial and reasonable/ foreseeable detrimental

reliance. The trigger of duty is very slight in the medical community.iii. US v. Lawter

Facts: P and family were on boat when they get washed over; Coast guard undertakes rescue while on routine patrol (notes no other boats nearby to help), the rescue attempt is botched and wife dies when she is dropped from cable

Holding: For P Coast Guard not only placed the deceased in a worse positions than when it took charge, but negligently brought about her death

o they were not definitely going to die. But she definitely died as a result of careless operation of cable by CG.o This situation of peril is directly related and caused by the careless rescue under which there is a duty.

Rule: If one is careless in an undertaking and P gets injured L. iv. Frank v. US

Facts: During rescue attempt, P tries to walk on his boat deck holding a handrail, the boat heels sharply and the rail breaks and P falls into ocean and drowns before Coast Guard can reach him; the CG here was not a normal CG, only ship left to help though

Holding: For D There was no duty to begin with, and CG performed a diligent rescue effort that was unsuccessful due to “lack of adequate equipment, preparation or personnel”

o Alternate Argument: (First Duty to rescue) CH understood reasonable care performing its duty to rescue Duty was to tow the boat; BY Frank’s own actions and non-CG actions, frank fell into the water and drowned. No Second duty to rescue.

Rule: no liability for unsuccessful rescue -- secondary situation of peril that CG was not at fault forv. Ocotillo West Joint Venture v. Superior Court

Facts: Zylka and Easley were drinking at resort; 2 employees took away Zylka's car keys because he appeared intoxicated; Easley offered to drive Zylka home, and employees thought Easley wasn't impaired so they gave the keys to him; Easley gave keys back to Zykla who got in fatal car accident

Holding: Appellate court enjoins Easley "When Easley took charge of Zylka for reasons of safety he thereby assumed a duty to use reasonable care."

o "Easley discontinued his assistance and put Zylka in a worse position than he was in when Ocotillo's employees had possession of his keys" --> "Easley's actions contributed to death, rendering Easley wholly or partially at fault (for jury to determine)

o (Intervening cause) "Ocotillo employees had taken charge of Zylka and effectively stopped him from driving. Easley's offer deterred the employees from their efforts to keep Zykla out of his automobile."

Rule: Good Samaritan doctrine laid out in § 323 (if rescuing, must do so reasonably) and § 324 (L if injury results from failure of reasonable care in service or discontinuation of protection leaves the person in worse position.

d. Special Relationshipsi. Petition of Trans-Pacific Fishing & Packing Co.

Facts: 3 crewman are washed overboard; captain doesn’t search for men bc it is too dangerous, vessel was tough to steer, engineer cautioned against it, there were other fires to be dealt with; 2 men are rescued by other ships

Holding: For P captain has a special maritime duty to rescue his crew. Very strong rationale for compulsion of rescue here:o (more danger) Amateurish rescues are not a concern here. These are skilled sailors. o (Reliance) No concern for interfering with the rescue attempts of an arguable more qualified party-- the only rescuers around.o (Risk) Sea captains are already freely engaging in a risky exercise, so it's not like the law would be pushing them into something risky

against their will (though it could be pushing them into something marginally more risky) Rule: (Maritime Special Relationship creates duty) Ship captains have a duty to use every possible means to rescue its crew.

ii. Brosnahan v. Western Air Lines Facts: P took his seat on airplane, passenger drops a bag on his head causing him injury Holding: For P "An airline's duty to supervise the boarding process for the protection of its passengers continues until boarding is

completed, and the danger created by an airline's breach of that duty does not abate until all passengers are seated with their carry-on luggage properly stowed."

Rule: (Common carrier has special relationship with passengers = duty)iii. Boyette v. Trans World Airlines

Facts: Rutherford is wasted during his layover, steals a cart, TWA gate agent chases him and corners him in alcove, he hides in trash chute, but falls into trash compactor; TWA agent and friend see him injured, then he gets trash compacted

Holding: For D the airline only has a duty to exercise the highest degree of care to safely transport its passengers and protect them while in transit… carrier discharges its duty once the passenger reaches a reasonably safe place and has left its care.

Rule: Special Relationship exists between a common carrier, and its passengers. But once that special relationship ceases, the duty ends. (there are time/space limitations)

Potential Argumentso P: Perhaps not tortious, (§ 322 don’t care if tortious), but flight attendant created some situation of peril, that then established a

duty to prevent the peril.

o Not strong, but enough to prevail over 12(b)(6)e. Duty to protect Third-Parties

i. Party C may owe a duty to warn/protect A if: (see §315) if Party C has special relationship with either A or Bii. Tarasoff v. Regents of UC

Facts: Holding: There was a special relationship between Therapist (Party C) and Aggressor (Party B) because of their therapist relationship, and thus

he had a duty to exercise reasonable effort to control him/prevent his dangerous activities. There was a reasonable effort to predict his behavior, but a negligent failure to detain/prevent his acting.

o There was a warning to campus police, but there was also a duty to warn parents or Tatiana herself. o This arises from special duty between therapist and special aggressor. o Also the information was present to precisely identify who the intended victim would be. o Police Defendants: No special relationship to either decedent nor Poddar which would impose a duty to warn about Poddar's violent

intentions Police departments only have limited resources and deal with many threats.

Ex Ante perspective Only concern for the court being the wrong body to correct police error rather than legislative reform

Maybe not in the best position to make this decision Rule:

o §315 applies "a duty of care may arise from either (a) a special relation between the actor and the third person which imposes a duty upon the actor to control the third person's conduct or (b) a special relation…between the actor and the other which gives to the other a right of protection."

Policy:o (Concern for chilling effect) may cause more harm to potential victims than benefit

But generally, confidentiality must yield when disclosure is essential to avert dangero (Concern for amateurish rescues) professionals, not just strangers

Therapists are the best people to make these predictions/make assessment of danger and know identity of potential victimo Consider: What is the goal? Therapy success or public safety

with quality therapy, perhaps that increases public safety, but this forces the court to really rely on therapists ability to get patients to disclose violent tendencies and make the determination of when something is serious

Pushback: Regardless, person A was murdered, so these therapist mechanisms and public safety measures were not sufficient.

Seems ^ justice and safety concern were greater.iii. Thompson v. County of Alameda

Facts: P alleged that county knew Hames was sex offender and "latent, extremely dangerous and violent propensities regarding young children…were likely result of releasing him into the community." Hames told police he would harm someone, released anyways and killed P’s son.

Holding: For D Here, the warning would be general and to a broad segment of the population and generalized warnings when frequently repeated would do little as a practical matter to stimulate increased safety measures…extensive/repeated warnings would be difficult on police

Possible Arguments: o P: (Reasonableness) was it reasonable to release this man into the community without any warning?

Policyo "imposing liability for failing to warn the neighborhood might substantially jeopardize rehabilitative efforts both by stigmatizing

released offenders and by inhibiting their release."o Chill for rehabilitative goals: "Parole or probation authorities would be far less likely to authorize release given the substantial drain

on their resources which such warnings might require. Duty to warn

o Difficult because there was no specific person to warno The court will not impose a duty on the police to warn the general public --> tort law is not a mechanism to impose this dutyo Perhaps will turn to a stronger argument for duty to protect

Duty to protecto Probably a larger question of should the county have released this man.o Negligence release of offender.

f. Owners and Occupiers of Landi. Key determination: Is P trespasser, social guest or a business guest?ii. HYPO: What if 2 trespassers had been hunting on someone else's property and one negligently shoots the other. Liability?

Land owner/premises liability does not apply. See Brown (joyriding): If the duty arises out of the criminal activity, then you might not owe a duty/no liability. Otherwise, you could argue this is an affirmative act that creates a duty. "unknown dangerous conditions" --> for unknown trespasser or discovered one, if the owner has no knowledge of the dangerous condition,

they generally don't have a duty. But, if the duty is to a business guest, there is a higher duty of knowledge of premises that would present a dangerous condition.

iii. Haskins v. Grybko Facts: D raised squash, and went hunting for woodchucks that had been ravaging his crops; shot at one in the dark, then in the morning

discovered he had shot P's decedent Holding: For D P was a trespasser on D’s land, thus D is not liable for mere negligence. Rule: No Duty owed to unknown trespasser; once known duty to not intentionally injure/negligently harm

iv. Herrick v. Wixom Facts: P managed to sneak into D’s circus without buying ticket; clown accidently shot firecracker that injured P’s eye Holding: For P the presence of P was known, thus the circus owed him a duty against wanton negligence. Moreover, the circus owed

everyone a duty to reasonably discharge fireworks in their crowd (see zone of danger). o Pushback: Reduce the damages since he was a trespasser. Stronger defense for D if the circus was closed to the public at the time.

Rule: When there is a known trespasser, you owe a duty of reasonable care.g. Attractive Nuisance to Children

i. Most jurisdictions reject Ryan Keffe is the dominant doctrine for children liability cases. Rule:

o if you have a nuisance on your land, that you know kids will want to come and play on it and it could seriously harm them, then you are responsible for protecting children from coming onto your land and getting hurt.

o Don't need an external characteristic that is alluring. Would just need to know that some aspect or artificial condition on your property may entice kids to come into the land. I.e. take some effort to put a lock, to deter or protect.

o The expectation is on a spectrum. The older the child gets, the more expectation we have for their own ability to understand and assess danger.

ii. Keffe v Milwaukee & St. Paul R. Co. (STILL GOOD LAW, majority rule) Facts: 7 year old P caught his leg in D's railroad and it was later amputated Holding: For P D knew that by leaving this turn table unfastened and unguarded, it was not merely inviting young children to come upon the

turn table but was holding out an allurement which acting upon the natural instincts into a hidden dangero knowingly attracting children into a place of danger, without the children's fault, the railway is bound to use care to protect them

from the danger into which they were thus led and from which they could not be expected to protect themselves Rule: Doctrine of attractive nuisance we don't treat these children as trespassers, because the attractive nuisance essentially invites the

children and thus they are owed a heightened duty. In more conservative jurisdictions, a better argument could be that the children are known trespassers as they would be expected to be attracted to the dangerous nuisance.

iii. Ryan v. Towar (Minority application) Facts: Bice Manufacturer Co. was out of business, but still owned a small pump house; children kick a hole in the wall and play on wheel when

one girl gets injured Holding: For a corporation with an empty treasury, and overwhelmed with debt, to be required to bear the expense of preventing children

from going across its lots to school, lest it be said that it invited and licensed them to do so, is to our minds an unreasonable proposition."h. Social Guests

i. Davies v. McDowell National Bank Facts: Davies and wife visit wife's stepfather at his business and find him unconscious; called a doctor who revived him and they stayed to

make sure he was okay; officer comes back later and finds wife and stepfather dead and husband passed out from carbon monoxide poisoning bc heater was rusted shut; doctor had previously advised to check furnace, but no duty to inspect for social guests, but there is duty to warn if he had done the inspection

Holding: For D Because P was a social guest (who happened to perform some minor/incidental services for his host), there is no duty to inspect and thus as D had no way of knowing of the unsafe condition, NL.

Rule: Social guest Rule.o (Business Guest Rule) Even if you didn't know of the conditions, but reasonably should have inspected so that you would now all of

the unreasonably unsafe conditions on your property, you have a duty to both warn and to prevent harm. Imposes liability for passive negligence (failure to inspect/warn)

o (Social Guest Rule) Duty to warn, no duty to inspect.ii. Lordi v. Spiotta

Facts: D invited P and son to his home; D negligently fails to turn off the gas heater; then asks P’s son to go turn on the heater, the basement blows up and son died

Holding: For P P negligently created a dangerous (artificial or otherwise) condition for P and thus this active negligence/affirmative act compounded by the failure to discover and prevent it show that D breached his duty to his social guests.

i. Business Inviteesi. Essentially the broadest scope of liability and duty to act reasonably

(reasonable care, reasonable expectation to find dangerous conditions, rectify dangerous conditions, duty to warn if dangerous or not fixed yet) encompasses everything from known to unknown dangerous conditions.

Duty to inspect: what a reasonable business owner is expected to do, and if any defects are found, fix.ii. HYPOS

Ex. Ladder breaks after one person uses it, and then a second person immediately uses the ladder. There is probably no reasonable duty to check the ladder every minute of the day. The successful argument would have to show the exact minute by minute proof, so absent that precision, it would still be a tough argument.

o Camera evidence could be useful here. EX. McDonald's franchise, leak in sink and someone slips in the bathroom.

o There is an expectation to monitor restrooms frequently, so if sufficient checks, you may be okay bc you would have reasonably caught it. But if you never check or only check once, that will probably weigh against you.

EX. Just stop at McDonalds to use bathroom. o §332 Duty to check premises to discover and remediate any riskso McDonald's could say tht the business of Mcdonalds is to provide food and you did not come into the premises to do that.o Thus, they wouldn't have that duty to inspect for unknown duties to you if you are only a social licensee.

j. Quasi-employee Situationsi. City of Boca Raton v. Mattef

Facts: City begins to contract with P to paint a sign on the water tower; tells him to work with city lawyer to draft contract; he doesn’t, goes to paint the tower and falls and dies when ladder breaks

Holding: For D P was a volunteer (not yet business invitee, did not finalize contract as asked)o Not Fully a guest b/c he was performing a task (of his profession), but not quite business since the contract was not signed at the

time of the accidento quasi-employee situation as the city had not reached a full contractual agreement and obligation with the decedent. Thus, absent

a contractual arrangement, P seemed to have volunteer his services. D had no idea that P would start services that day, nor did it have enough notice to have performed the inspections that would have been expected if P was an invitee.

o Deterrence rationale: The city may have done a proper inspection if they knew that a worker would be using that ladder. Pushback: What about the superintendent? Response^: The superintendent is not the P. Thus, even if there was a duty owed to superintendent, perhaps the city would

have done an inspection when the knowledge that he was going to use the ladder. Rule:

o Volunteer Rule: "When the deceased by his own volition in the fulfillment f an undertaking related to his own business of sign painting entered upon the premises of the appellant, climbed the water tower and undertook the work.. He was at most a licensee."

o Licensee Rule: such a licensee takes the premises as he finds them and the duty of the owner of the premises is to refrain from wanton negligence or willful misconduct that would injure the licensee.

o General Rule: "If the owner has knowledge of pitfalls, booby traps, latent hazards or similar dangers, then a failure to warn such a licensee could under proper circumstances amount to wanton negligence… but there must be knowledge of the danger by the owner combined with knowledge that the licensee is about to be confronted with the danger."

ii. Jacobsma v. Goldbreg’s Fashion Forum Facts: P is shopping with wife when store manger yells, “stop thief” and in trying to stop shoplifter, P dislocated shoulder

Holding: For P P was a business invitee and D invited P’s performance by asking for help and P’s purpose in attempting to restrain the shoplifter was a benefit to D (which elevates P to invitee status)

o Foreseeable Element (Duty to warn): D knew that the shoplifter had tried 3 days prior, and had a responsibility to protect its invitees from other illegal acts by him

Possible Arguments:o P: Business Guest owed a duty of affirmative care

By yelling out stop thief, D is expected to call out for help (affirmative act) reasonably Thus, this affirmative act establishes a duty to be responsible for the manner in which he asked for help i.e. not giving P time

to assess dangerso D: P changed from invitee on a volunteer status when he chose to act on abstract request

If the litigation was switched and the owner was suing the customer for not assisting in the impediment of theft, there would very obviously be no duty (See no duty to rescue).

It follows that since there was no duty to rescue/act, the fact that P acted, may carry that same level of NL. (GOADING? See Yania) But, is there a high probability that the call out would induce action in a reasonable person. If so,

was the calling out unreasonable (see Hand formula) If this is the framing, we would need to focus on the known danger aspect. If there was no affirmative request, and P tackled a shoplifter on his own. There would more likely be no liability for

the owner. Thus, with the extra facts of the request, perhaps the argument for liability is stronger. VII. Negligence: Standard of Care

a. Backgroundi. 4 Elements of Negligence Action

1. Duty (to act reasonably to prevent)2. Breach of duty/standard of care)

o Hand Formula Consider P what is the cost that the precaution eliminates? How much does precaution reduce the baseline likelihood of

risk? How much safer are we making the situation by taking the precaution?o Other Theories:

Reasonable person Customary standards

As Shield (D/P failed customs negligent) As Sword (D/P adhered to customs NL)

1) Custom of the trade Can we sub the market’s own cost-befit for court’s? Generally, no TJ Hooper

2) Liberal freedom v. security3. Causation 4. Damages5. (Proximate Cause)

vii. Based on an “avoidability” standard if it turns out the harm was truly avoidable, liable

If it turns out D met the standard of care not liableb. Reasonable Person

i. R2d § 283 Conduct of a Reasonable Man Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like

circumstances.ii. Distinct Defect Rule: When to consider “X” as a factor of the reasonable man

Holmes: Distinct defect (characteristic X) ASKo How discrete is the problem (can it really be measured and how easily can real claims be separated from false ones)o How visible is the defect to others Ex ante (before accident)o *Knowledge of defect is critically determinativeo Who is in the best position to prevent? Mentally disabled or person with knowledge?

iii. Vaughan v. Menlove Tags: reasonable man, objective standard Facts: D builds haystack near edge of property; P repeatedly warns D that this is a fire hazard to which does eventually catch fire; fire spreads

to D's barns and burns P's cottages Negligence: Carelessly lighting haystack when precautions could have been taken (told repeatedly this was dangerous) Holding: The standard is for a reasonable man, not a subjective standard of each D, which here was alleged to be a “person of lower

intelligence.”o Lesser intelligence does not negate duty/standard of care

1) Polmatier (incentive to care taker)o But higher intelligence may be factored in to the reasonableness standard i.e. industry knowledge

Rule: Objective standard of reasonable mano Avoid opportunistic defenses/false claimso Give better idea of what is expected in social interactiono Deterrence of carelessnesso CONS:

1) pockets of immunities from L 2) pockets of strict liability (overdeterrence?)

iv. Lynch v. Rosenthal Tags: distinct defect, mental disability, knowledge of defect, lower standard of care Facts: P is mentally disabled, helped D on farm; one day told to walk behind husker and pick up fallen corn; while doing so, trips and his arm

gets stuck in husker; D argued P was contributory negligent Negligence: D negligently failed to warn P that it would be dangerous to come too close to corn picker. If P is held to lower standard of

understanding and D knew this, he should have given better instructions about the danger and how to not get hurt. o P’s argument for contributory negligence fails because was could not be held to the same reasonable man standard since he/D knew

he had a mental incapacity Holding: Because P is held to the standard of a reasonable man with lower mental capabilities, he is not contributory negligent for walking

closing to the walker when negligently instructed by D to follow the picker. D is L. Rule: In general, mental disability is not built into the standard of care, but will be for contributory/comparative negligence defenses.

o Incentives:1) Encourages caretakers to take certain increased precautions2) If D way, court may seem to discourage mental disabled to go outside or for people to engage with disabled.

v. Weirs v. Jones County Tags: non-distinct defect, reasonable standard Facts: D puts up signs to warn travelers that the bridge is condemned; P can't read English and uses the bridge and sues to recover damages

from losing horse/wagon Negligence: inconspicuous signs in English negligently failed to give notice to traveler who couldn’t read English. Holding: Lack of knowledge of language is not a lower standard/distinct defect. A reasonable man would have seen the sign and taken notice.

D is NL. o Pushback: Better signs could have been made that relied on symbols rather than words.

Rule: Unless it is a distinct defect, an individual cannot claim a higher standard of care than is reasonably expected for reasonable man. vi. Kerr v. Connecticut Co.

Tags: reasonable man standard, deaf man, Facts: Deaf man was walking near tracks, trolley driver sees him, sounds gong, applies break, but still hits him and man dies Negligence:

o P alleged that D negligently failed to give notice to deaf man about oncoming train. o D alleged contributory negligence for walking near train tracks when deaf or otherwise.

Holding: Kerr was contributory negligent because he should have taken the same precautions any reasonable deaf man would and also reasonable person would know if you walk near tracks you might be hit

vii. Davis v. Feinstein Tags: defect, blindness, lower standard Facts: Blind man using cane ends up falling down open cellar door of D's store Holding: "a blind person is not bound to discover everything which a person of normal vision would." He took reasonable efforts to

compensate for his blindness and to discern his path. Rule: A blind person is not bound to discover everything a person w/ normal sight would; blindness can’t be remedied

viii. Dunn v. Teti Tags: reasonable child Facts: Both parties are kids and D swings a stick negligently causing harm to P. Holding: D is NL. D is “too young” to be negligent Rule: The test of reasonableness varies b/w kids and adults

o Has changed since, allows for some spectrum of negligence for older kids, to be judged by age/maturityc. Risks and Precautions – Hand Formula: B < P x L – if burden is less than probability of injury times cost of liability, then burden/precaution should be

taken (negligent if not)i. US v. Carroll Towing Co. (Hand Formula)

Facts: Alleged negligence is that Connors failed to have a bargee on board, boat sinks and cargo is lost Holding: Boat company is negligent if it does not have a bargee during reasonable hours (i.e. work hours) although the bargee may leave for

short period of time. Here, the bargee was gone for 21 hours. o P = that barge will break away; L = gravity of resulting injury; B=burden of adequate precautions

Rule: Establishes Hand formula (B<PL) If the costs of taking the precaution exceed the benefits, NL for not taking precautiono B= burden/cost of untaken precautiono (Benefits from precautions)

1) P = reduced risk of harm that could have resulted from taking precaution2) L= consequences/level of harm at stake

Qualified by freedom/liberty to choose tolerance of risk If L is high, it may justify a high B, but if P is so small ex ante that PL seems negligible, the obligations to take precautions may vanish

ii. Compliance error (where D fails to take some precaution everyone agrees is required by reasonable prudence) Ex. Momentary failure to take repetitive precaution i.e. sounding horn

iii. Durable precaution (safety measure that can be implemented with one decision) Ex. installing fire escape, hiring a bargee) INCLUDE IN HAND FORMULA (B) Policy: Even though 100% accuracy is impossible, the court pushes SL.

d. Custom i. Scenario 1: Strangers

D harms P (not in the industry) Benefits to industry custom: Administrative ease Cons to applying industry custom:

o (Market Forces)1) Market has no ability to pressure the company to take precaution to protect this stranger i.e. increased costs2) Stifles innovation

o (Social Forces)1) societal value 2) relationship between companies and any harm they cause non-contractual parties indirectly affect them

ii. Scenario 2: Contractual/Consensual Relationship D harms P (contractual party, some sort of duty) Benefits to application of custom:

o D is customer the market can self-regulate if D is consistently breaching customo Easy for court to take existing market analysis for standard of careo Noncompliance can be priced into the market b/c customers will avoid risky contracts

Cons:o flawed assumptions

1) some people have higher risk tolerances2) perfect competition models don’t exist3) how is a consumer supposed to know all of the risks possible or non-competitive consequences4) Assumes a customer knows all of her options5) Assumes perfect information/options available in market

iii. Takeaways: Default: Custom is not dispositive

o Merely evidence of what is reasonable, but reasonableness should ultimately be established through court’s own framework of B<PLo Consider the relationship between P/D

1) Is there a contract?2) Was there consent/ assumption of risk?3) Any contributory negligence?

iv. Mackintosh v. Mackintosh (1864) man carrying a lighted candle through a powder magazine will take the same care as if he were walking through a damp cellar… amount of

care will be proportionate to degree of risk run Ethical argument for Hand Formula

v. Adams v. Bullock Facts: P (12 yr. old) swings wire and brings into contact with D's trolley wire, which is ~4 ft below structure (Cardozo) Holding: For D; the D’s overhead trolley was the lawful exercise of its franchise; the placement of the wire system was such that no one would

be able to reach it must have been extraordinary circumstance Rule: Doesn't really need to apply Hand rule because the standard of care is met, so there is no negligence (B = cost to move wires (high); P =

very unlikely; L= burn, shock, death in child)vi. Bolton v. Stone

Facts: Woman who lives across the street from cricket field, which has 7 ft fence on her side, gets struck by a super good hit Rule: Question of marginal cost v. Marginal benefit of untaken precaution v. taken precaution (essentially B>PL) Holding: A reasonable man would not stop playing cricket or build a higher fence to avoid the accident

vii. Eckert v. Long Island R. Co. Facts: P was near train tracks and saw train approaching, train did not blow whistle; small child was on tracks, so P saves child, but is hit by

train and dies Negligence: running train at high speed in highly populated neighborhood and not sounding horn Holding: negligence implies wrong, it’s not wrong to make every effort to save this child unless rash or reckless. D is L. (B<PL)

o Untaken precaution = for P not to have rushed the tracks to save the boyo PL = injury/death of childo B= cost/burden of not rushing tracks essentially the chance the boy would save himself

Rule: Had there been no fair chance of the P’s defendant saving a child negligento Factors: magnitude of risk, principal object, collateral object, utility of risk, necessity of risk, human life > propertyo Posner:

1) calculating this all, the RR would have benefitted from "hiring" Eckert to save the child in comparison to the cost of paying for the loss of the child's life to the parents…therefore, they should compensate him ex post

2) The expected benefit of the rescue for the railroad in reducing an expected liability cost to the child’s parents was greater than the expect cost of rescue (i.e. Eckert being injured or killed)

viii. TJ Hooper (Hand) Facts: Several barges got lost in a storm while being towed by D's tugboats Negligence: Lack of working radios that would have notified them of storm conditions

o D’s defense: It is not industry custom to use radios yet

Holding: Here, there are precautions so important that the universal disregard of technology does not excuse this particular boat's lack thereof. The injury was a direct consequence of this negligence aka unseaworthiness.

Rule: A court may look to industry custom to find evidence of the reasonable standard, but sometimes the industry standard as a whole is lacking and will not afford a defendant defense from liability for an untaken precaution that could have vastly prevented the accident.

o Incentivize the whole industry to update!1) Otherwise, there are no market forces to put pressure on industry

o Compliance with custom is not a defense if the industry custom as a whole fails the Hand formula.ix. Rodi Yachts (Posner) not really great precedent anymore

Facts: National Marine ties barge to dock and leaves, TDI had not yet found crane to unload and the barge becomes unmoored, and causes $100k in damages

Holding: Here the standard of care is: 1) barge owner to sufficiently inspect 2) dock owner to inspect barge periodically remanded to determine if this standard was met.

Rule: Defer to market custom if the market analysis is soundo Between contractual obligated parties, the standard of care is set by the market -- it is the customers reasonable expectations that

the firms they are dealing with comply to the standard -- otherwise they'll go elsewhere or demand lower pricesx. HYPOS: Should custom be a strong defense in either? One more so than the other?

Railroad is sued when one of its trains drives through a crossing without blowing its horn and runs into P's car. P's car entered crossing right before train arrived. RR's defense: customary to blow horn only when driver sees obstruction

o The custom seems reckless and negligent. What if the engineer forgets to look or the car is in a blind spot. TJ Hooper rule should stand here. Some RR may have the standard of always horning, and others are lacking if not.

xi. RR is sued by passenger struck by luggage when it falls out of overhead. P claims RR Should have enclosed baggage over its seats (like a plane). RR's defense: no RR have enclosed overhead compartments

o Custom may be closer here, because there is no company that has a higher standard of care. The market has not forced any other RR to take some precautions. Plus, airplanes hit weird turbulence, trains generally know when to slow for curves and what not. The standard of care is closer to Rodi Yachts where the court should find if the RR stored the luggage properly and checked if they did so.

e. Medical Malpracticei. Default rule: defer to medical custom

It’s an esoteric field The medical objective is to protect/preserve life thus, self regulation aims to maximize this goal (doesn’t need the law to apply this

pressure) Inherently ethical field (Hippocratic oath) and doing right by patient Medical incentives already push best decisions possible medical field cost-benefit analysis is already ideal (not profit driven)

ii. Trend: increasing willingness to challenge medical custom based on the empirical evidence i.e. deaths from physician errors Even so, generally a self-regulated/contained response and change

iii. National standard of careo Locality standard arose out of a sense of fairness, but the cons were too high

1) As transportation and access became more readily available, courts warmed to national standard Distinction between medical judgment re: dosage/care (national) v. availability of resources (local)

o Substance v. procedure

Procedural concern custom are determined by experts, but doctors generally don’t want to testify against their own colleagues Medical "informed consent" is not set by customs standard of care Question is generally, did physician disclose all "material" risks known

for operation Consider: if the standard changes, does the behavior change in the intended manner? Is the deterrence sought actually effected?

iv. Brune v. Belinkoff (MA 1968) – retiring of the locality standard Facts: D, anesthesiologist, gave 8mg epidural which was the standard in New Bedford, woman falls 11 hours later bc numbness; the custom in

Boston (50 mi away) is 5mg Rule: The proper standard is whether the physician exercised the degree of care and skill of an average qualified physician, taking into account

advances in the profession -- some leeway for availability of resources factorv. Gambill v. Stroud (locality exception)

Facts: D is unable to operate due to anesthesia complications, these complications cause brain damage and cardiac arrest in patient Holding: The applicable standard of reasonable care is considered in light of members of profession engaged in similar locality Judgment

for D Rule: For matters of medical procedure that are affected by access to resources, there is an exception to take into account the locality’s

relative geographical location, size and character of the communityo Complete abolishment of locality standard just heightens the difficulty on small town doctors

vi. Johnson v. Wills Memorial Hospital Facts: P was patient at hospital ward, acting irrationally one night and had to be sedated and isolated; he escaped and was found in an outside

yard, later died from overexposure to cold; P's estate sued D on ground that hospital, through its personnel, failed to adequately monitor Johnson, failed to inform treating physician of condition and failed to treat him as physician directed

Holding: P's complaint that nurse case was substandard and facilities deficient since it failed to protect her decedent are not warranted --> protection of patients is not a medical function of hospital Judgment for D

Rule: "locality rule" is appropriate when the adequacy of a hospital's facilities or services are questionedvii. Cook v. Irion

Facts: P trips and falls on sidewalk; has 3 possible defendants to sue: center that owns sidewalk, tenants occupying, tv station whose cable she tripped on; lawyer only sues center and loses; P's expert lawyer witness is from Alpine, TX -- we are in El Paso

Holding: "an attorney practice in a vastly different locality is not a qualified second guess on the judgment of an experienced attorney of the El Paso Bar" judgment for D

f. Negligence Per Se (JUDGE-MADE, jury can’t discredit if found MOL)i. Reasonable standard is the compliance of ordinance/statute

Statute’s intent is critical:o Does it intend to protect a class in the party?o Does it intend to prevent/deter this action/this safety issue?o Does the violation inherently increase probability of the accident?o Is there a connection between the statute and type of safety precaution expected?

ii. When the court determined that D has violated either a statutory or common law rule and that the violation establishes D's negligence MOLiii. Split in jurisdictions

Majority: if the law is strong, completely applies negligence per se OR allow jury to decide compliance w/ ordinance Minority: Complete rejection of NPS defers to hand formula OR evidentiary based JMOL

iv. R§ 286 The court may adopt as the standard of care the requirements of a statute or administrative regulation whose purpose is found to be

exclusively or in part • to protect a class of persons which includes the one whose interest is invaded • to protect the particular interest which is invaded • to protect that interest against the kind of harm which has resulted • and to protect that interest against the particular hazard from which the harm results

v. R2d § 288A if it's an honest mistake to not know something went wrong i.e. tail light went out even though car was up to date, NL

vi. Martin v. Herzog Facts: P was driving a buggy w/o lights and D was driving on the wrong side of the road there was a collision. Lack of vision was cause of

accident. Holding: Not having lights on the buggy was negligent per se, and the jury cannot ignore this – negligent MOL . Rule: Contributory negligence can be established if P violated important statute. P’s violation of statute inherently increased the likelihood of

the accident. vii. Tedla v. Ellman

Facts: P and bro were walking along right side of the road with lantern, D is driving down the same side and strikes them, killing brother; P did not follow statute because there was heavy traffic on the proscribed side and was safer on the side they did walk on

Holding: The statue provides rules of the road as a general rule of conduct but when the “unusual” occurs, strict observance of the statue may actually defeat the statue’s purpose.

Rule: If The statute's purpose is to maximize safety; common sense would dictate you don't follow a rule if it leads you to be in more danger.o Distinction with Herzog: Good always comes out of keeping lights on the car but good doesn’t necessarily come out of staying on a

specific side of the row indefinitely when walkingviii. Tingle v. Chicago

Facts: D's train ran over P's cow on a Sunday. P sued alleging no particular negligence, but that state law prohibited operation of trains on Sundays

Holding: For D; Since the D didn’t operate the train in a negligent manner, the injury resulted from an accident for which the D is not responsible. Intent of the statute was for religious purposes, not safety standard.

Rule: no connection between violation and cause of action/purpose of statute. By violation the blue law, the train conductor is not inherently increasing the risk that property damage may occur.

Counterargument:o Reliance based on compliance with statute – farmer may have let his cows roam more since there weren’t supposed to be trains

operatingix. White v. Levarn

Facts: Squirrel hunting prohibited on Sunday. Both P and D went hunting. D mistook P’s hat for a squirrel and shot him. Holding: For P; Shooting on Sundays are illegal, therefore the shooting was an unlawful act voluntarily done --> D is answerable for trespass.

Consent to an assault is not a defense bc it is a state violation and therefore violation MOL. Rule: Where the violation and type of harm involved are directly linked, the unlawful act evidences negligence per se.

x. Selger v. Steven Brothers, Inc. Facts: Lady slips on dog poop in front of business as the owner was directing someone to clean it; P sues D on ground of negligence violating

LA Municipal Code §41.46 (can't neglecting sidewalk outside house/business)

Holding: the statute created a duty on D that was owed to the city, not a duty or standard of care for pedestrians. The primary purpose of this statute is cleanliness and safety (from a duty to city, not the travelling public)

g. Res Ipsa Loquituri. Ybarra test

2 factors to look for in who done ito Are D’s able to observe the care taken by the others?o Do we have concern of conspiracy?

1) # of parties (smaller the better)o Can RIL’s purpose be applied effectively? (smoking out truth, putting pressure on D to produce exculpatory evidence, assumes a lack

of faith in discovery.)ii. Application:

where P has no access to evidence/proof to win In 100 simulations, do 51+ turn out negligent If yes, RIL = negligent

iii. Various interpretations If due care had been used, the accident would have been unlikely to occur. The type of accident that occurred becomes much more likely when someone is negligent than it is when due care is used. When accidents of this sort occur, they usually result from negligence. The fault is solely on D because the accident was foreseeable enough for them to know better. B<PL for sure.

iv. Here, the accident itself is evidence of the negligence (does not require preponderance of proof)v. Con:

Only really a thought exercise for extreme cases – normal situation will not workvi. Bryne v. Boadle

Facts: P was walking down street in front of D's premises and was struck by a barrel of flour thrown out of the window; D had a jigger hoist that controlled lowering of barrels

Holding: Because D had exclusive control of the barrels/machinery, D has a duty to maintain control and care of the barrels. Thus, if the barrels fell out the window, this accident is evidence of a failure in care. Judgment for P

o Optimal rate by which barrels fall should be 0; thus, we expect that most conceivable precautions that could prevent this from happening are implemented, and thus, failed precautions are deemed unreasonable.

Rule: Res Ipsa Loquitur: Mere fact of the accident having occurred is evidence of negligenceo Presumptions based on:

1) Accident’s likelihood of having resulted from negligence2) Parties disparate access to evidence

o Consider from B<PL 1) B=low because the jigger hoist is presumably being watched already/functional; burden here is someone actually monitoring

it; P=high is no one watches the barrel (wind, a hitch, stranger), L =injury, damage, death2) D is in the best position to control the risk

vii. Combustion Engineering Co. v. Hunsberger Facts: Hunsberger, P, was on the ground level and a workman from D was higher up trying to hammer a metal wedge between two plates, the

wedge skips somehow and hits Hunsberger

Holding: The mere act of a tool falling within a building in work of construction cannot be presumed to result from negligence (not Res Ipsa Loquitur). The standard of care in a construction site does not lead to perfection and the 100% prevention of falling tools judgment for D

o Marginal analysis Rule: If the facts of the case remain open to speculation whether the wrongdoing was due to negligence or some other non-negligent

circumstance, then RIL is not applicable and P must still meet the burden of preponderance of proofo Consider B<PL

1) B= increase all safety measures or not to do construction at all; P = wedge flying out somewhere between 1-20%; L=minor cut to death

o Admin Ease: Is it too much to ask 100% perfection from every single construction worker in every site to never drop something. Workers tend to try not to drop stuff.

viii. Larson v. St. Francis Hotel Facts: P is walking on street, gets hit by an armchair, supposedly thrown from hotel window by a guest; P sues to recover damages and only

uses res ipsa loquitur doctrine Holding: the hotel took ordinary care, but a wild guest tossing a chair out of the room is not ordinary; hotel does not have exclusive control of

its furniture. VJ day was unannounced celebration, so couldn’t have increased precautions anyways. Rule: P must prove: 1) there was an accident 2) thing that caused the accident was at the time of and prior thereto under the exclusive control

and management of D 3) accident was such that in the ordinary course of events, D using ordinary care, accident would not have happenedo Consider B<PL

1) B = armed guards, no furniture; P = seemingly low; L= property damage, injuryo If there was willful intent/we knew who D actually was, perhaps there could be a battery argument (substantial certainty a thrown

chair would hit someone)ix. Brauner v. Peterson

Facts: D's cow wandered into road, P hits cow and sues to recover damages; P presented no evidence as to how cow broke free of pasture, only relied on the fact that the cow escaped

Holding: Judgment for D; an animal can escape from a perfectly adequate enclosure, thus just because a cow was on the road is not sufficient to find negligence

Rule: The possibility that the cow broke free for other reasons that were not due to negligence disallows RIL application. With regard to res ipsa loquitur, the event must be one not ordinarily occurring if someone is not negligent

x. Guthrie v. Powell Facts: D had a two story building (cows on second fl); P was sitting on ground floor and a cow fell through the ceiling and squished her Holding: Judgment for P; No alternative explanation other than negligent maintenance of cows on second floor that could have caused

accident. xi. Wilson v. Stillwill

Facts: P gets surgery by D, develops a post-op infection and eventually loses arm's function Holding: Record shows that D hospital had lower infection rate than the national average, and also in general, occurrence of post-operation

infection is not enough without more facts to infer negligence (it just happens sometimes) Rule: Development of infections can occur even if all precautions are taken, this is still somewhat in the realm of ordinary

xii. Judson v. Giant Powder Co. Facts: Giant Powder Co's nitroglycerine factory explodes and causes further explosions of Judson's property, also killing many of his employees

Holding: There are no witnesses/proof to attest to situation for P Rule: When a thing which causes injury is shown to be under the management of D, and the accident is such as in ordinary course of things

does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by D, that the accident arose from [negligence]

o Dynamite would be considered an abnormally dangerous activity in modern legal theory, thus SL standard would apply. xiii.Haasman v. Pacific Alaska Air Express

Tags: overcome the obstacle of lack of evidence because it is destroyed Facts: Plane goes missing without a trace; D counters that RIL shouldn’t apply bc D has no more information about accident than P Holding: Court rejects D’s lack of knowledge defense, says this defense only works if P has equal access of/to knowledge, not equal levels of

ignorance. D may still have had better records of maintenance, distress calls, age of planes Rule: D may escape RIL only if P had equal access to knowledge and proof; if both parties lack that access, then RIL may still be applied against

D. High likelihood of compliance erroro Where technology has made an activity unusually safe, the same tech has multiplied the possibility for compliance error relative to

those for unavoidable accidentso ** Accidents in areas with the most safety equipment are the strongest res ipsa cases**

xiv. Warson v. Lambertsen Facts: P's decedent died when the crab fishing boat he worked on sank; P argued it was bc boat was unseaworthy due to large live crab tank

that impaired stability Holding: For D the crab tank was added by an experienced skipper, no indication it was improper or negligently done, nor that the boat was

unseaworthy otherwise Rule: Many hazards at sea v. in the air (plane goes down) thus, we are more comfortable with RIL for air travel than dangerous sea conditions

o Crab boats are the opposite of commercial planes… travels slower, less people on boat, uses primitive techi. Ybarra v. Spangard

Tags: res ipsa loquitur, several Ds Facts: P goes in for surgery, all goes well, when he wakes up he realizes that he has a swelling and massive pain in his right shoulder; P went to

get a second opinion which found that injury was due to trauma Holding: The patient was put in the care of nurses/doctors, rendered unconscious and seemingly injured by them --> P would only be able to

recover if the doctors/nurses voluntarily disclosed the identity of the negligent person and the facts establishing liability of their colleague Rule: The # or relationship of D alone does not determine whether RIl applies

o Multiple D: info gathering objective – o Application in Med Mal: Not liable unless evidence consisting of expert testimony from recognized material text or regulations to

demonstrate breach of duty xv. Wolf v. American Tract Society

Facts: P is hit while walking under construction site by brick, sues 2 contractors Holding: Judgment for D all of the contractors/workmen do not supervise one another during oconstruction; thus, it is not reasonable to

blame 2 contractors when obviously someone did it, but there is no way to smoke out the truth by blaming the innocent. Rule: Where there is no way to know the actual culprit, P must still show that the D’s had the opportunity to observe one another, there is

concern for collusion and that D will be among the group. xvi. Bond v. Otis Elevator Co.

Facts: P was in an elevator that goes into free fall, but catches itself and she sues the building and elevator co. Otis installed the elevator and had a contract with the building to maintain it

Holding: Judgment for P both owner and elevator co liable for injury; both D’s are in the best position to know why the elevator went into free fall

Rule: RIL is not barred when P has not been able to show the exclusive control of a single entity. Both could be jointly liable because one could have negligently failed to inspect, and the other negligently failed to enforce safety standards in its building

xvii. Actiesselskabet Ingrid v. Central R. Co. of NJ Tags: explosion, res ipsa, Facts: DuPont contracted to transport dynamite then another crew to move dynamite from railroad car to ship; one of these cars explodes in

the transition and blows up P’s property; P sues manufacturer, RR and smaller RR Holding: Judgment for D P's own testimony says that any one of the defendants could have been the culprit of negligence, or even an

outsider and any one of these alternative theories is just as possible as the next, thus cause of explosion is a mystery and cannot be accounted for

Rule: If D are not in a position to observe one another, P must provide further proof and cannot rely on RIL. xviii. Samsung v. Riesing

Facts: P ate turkey salad and dessert at a luncheon and got salmonella poisoning; P's evidence was that turkey salad had salmonella in it; 9 members of church Band Mothers Association prepared the food, but it was impossible to determine whose turkey had contaminated the batch

Holding: For D The women have no duty nor no knowledge of who may have contaminated the food, thus the fact-finding leverage/purpose of res ipsa loquitur isn't even being properly wielded

Rule: where the increased number of D's also leads to an increased number of plausible theories that are all equally possible Can’t rely on RIL, must show preponderance of evidence

II. Negligence: P’s Conduct/Defensesa. Contributory Negligence

i. if by P’s own negligence contributed to their injuries – generally could not recovery anything from D, who was also negligent o All or nothing approach: aka last clear chance doctrine P can recover despite being contributorily negligent if D had sufficiently

good opportunity to avoid accident when P didn’t1) P should be penalized for misconduct2) P should be deterred from injuring himself3) P’s negligence supersedes D’s so as to render D’s negligence no longer proximate

ii. Harris v. Meadows Facts: Harris is driving and Meadows makes a left turn in front of her; Harris says she braked and moved, but the cars still crashed. Holding: For D there was sufficient evidence to conclude that Harris was guilty of contributory negligence in failing to act reasonably under

circumstances to avoid collision (never attempted to actually brake, assumed Meadows would see her and Meadows would avoid the crash) Rule: Contributory negligence

b. Comparative Negligencei. reduce damages paid to a negligent D, but still allows recovery

Objective: maximize deterrence w/ fairness in mind, maximize prevention, incentive cost-justified preventions relative to accident and litigation costs

ii. McIntyre v. Balentine

Facts: Balentine was drunkenly driving his tractor and McIntyre was speeding in his pickup truck, they crash; McIntyre sues, but the jury finds both negligent so McIntyre is barred from recovery

Holding: Adoption of modified comparative negligence rule (does not exceed) Rule:

o Pure P’s damages are reduced in proportion to the percentage negligence attributed to himo Modified comparative negligence standard, P recovers reduced damages in proportion to the percentage of negligence attributed to

him, but only if P’s negligent either does not exceed 50% or is less than D’s negligence (49%)iii. EXCEPTIONS that will bar recovery

Manning v. Brown (Serious criminal violation = no recovery)o Facts: 2 unlicensed high schoolers drive off in a friend's car, both driving, when they get into a car accident; the injured girl sues the

driver and owner of the cars for negligenceo Holding: Both girls were unlicensed, engaged in a hazardous activity to themselves and the public; joyriding is not just mere use, but

includes reckless driving which is a threat to innocent parties and thus, bars recovery. o Rule: It is against public policy to allow someone to recover damages for a serious crime they helped commit.

1) Can’t claim a breached duty to be unlawful reasonably Fritts v. McKinne (Rejection of patient’s own negligence as reason doctor sees them)

o Tags: Cite if 2 separate accidents/injuries to allow for fully recovery1) Consider timing: prior wrongdoing may/not be applicable2) Contemporaneous condition has different merits

o Facts: Fritts drunkenly drives into tree and requires a tracheostomy to be able to breathe during surgery -- he suffers a ruptured artery and dies before procedure

o Holding: Under guise of contributory negligence, a physician may not avoid liability for negligent treatment by asserting that the patient's injuries were originally caused by his own negligence.

o Rule: The entire role of a doctor is to fix people who get hurt, if he does a bad job he can't blame the patient for coming into his ER.1) Disconnection between primary injury and secondary injury (nicked artery was separate from the wrongdoing and mistake

could have been made on any patient, not just one who came in from being dumb)2) Reluctance to put public policy implications on medical practice

Oulette v. Carde (rash/reckless behavior bars recovery)o Facts: While replacing muffler, car falls on Carde and gasoline leaks everywhere, he calls neighbor Ouellette and they decided to

leave; Ouellette presses electric garage opener and the gas ignites, injuring them botho Holding: Judgment for P, P came to D’s rescue and his own careless acts caused the dangerous situation and the law values human

life above all. o Rule: One who voluntarily attempts to save another should not be barred from recovery; can only be barred If the person was

rash/reckless in rescue attempt1) Court doesn’t want to discourage good Samaritan behavior2) See Duty (if one undertakes a rescue, must do so with reasonable care)

Alamni v. VW (Balanced negligence)o Facts: Alami drunkenly drives his Jetta into a pole and dies; spouse sues claiming Alami's injuries were increased by defect in design

that caused the floorboard to buckle upward during crash

o Holding: For P VW had independent duty to design car safely this duty does not arise out of P’s dangerous actions1) Although it is against public policy to allow someone to recover for his own criminal conduct, the value of human life in the

law should be considered by a jury balanced, reduced damages2) Debatable on actual cuase of death but P’s argument that the board itself may have ultimately caused death is just barely

enough to prevail.o Rule: When human life is at stake, the law will give some leeway to a degree of contributory negligence. The accident may have

been fatal against a sober man as well. Van Vacter v. Hierholzer (Full recovery)

o Facts: P had terrible health and had a heart attack; doctors gave him instructions to change behavior and even a regimen of drug treatment (neither of which he followed); he went to hospital several years later and was sent home by doctor after stabilizing; died few hours later

o Holding: Application of Fritts standard, but different outcome because here there is a repeated failure to comply to doctor’s recommendations

1) There is a question of the repeated noncompliance and the doctor visit in questiono Rule: Where the injury is connected to P’s own actions, no recovery.

Manning Hypo:o 2 robbers are escaping and crash; injured robber sues driver – can P recover?

1) What is the connection between wrongdoing and accident?2) Is the accident a product of the wrong doing

If yes recovery barred. .e. cops in pursuit If no, perhaps 2 separate issues i.e. just driving to celebrate

c. Express Assumption of the Risk: Primary Assumption of the Riski. Objective: Collapsing B<PL and deferred to informed choices of the individuals

Definition: Where P assumes the risk of the harm that occurred and therefore, should be barred from recovery essentially no breach b/c there was no duty owed to P

ii. Express Assumption Hypo: What if D doesn’t pack any parachute at all?

o The court distinguishes between gross negligence and simple negligence.1) Perhaps waivable if language explicitly includes gross negligence2) But some state disallow this sort of waiver at all for public policy concerns

CONSIDER: Contracts v. Tortso Arguably expectation for higher clarity here than typical contractso Greater expectations that actually reads termso Contracts = private agreements; Torts = communitarian standards

Market Forceso If the market is sound (increased competition and informed people)

1) The precautions may self-regulate if the market doesn’t tolerate too much risk, even if it allows a lower priceo Should we defer to market? See Rodi Yachts.: We like the market here.

1) Disadvantages:

Courts don’t trust the market nor customers. Cognitive limitations Is there actually choice in a market?

Van Tuyn v. Zurich American Ins. Co. o Tags: NL where language does not explicitly shift risko Facts: P wants to ride the mechanical bull and asks operator to not do it too hard; she signs a release waiver (without reading it)

1) "I hereby voluntarily assume any and all risk…I hereby voluntarily release Club Dallas from … claims of any nature that I may have against them on account of my attempting to ride the bull.”

o Holding: this agreement is missing the specific language to release liability for "its own negligence" and thus, does not bar recoveryo Rule: For a release claim to be effective, it must clearly state that it releases the party from liability for its own negligence

Manning v. Brannon o Tags: clear and specific language = successful shifting of risko Facts: Skydiving lessons, watched a video on legal liability, and signed a waiver stating skydiving was "inherently dangerous" and

exculpating negligence/other faulto Holding: o Application: Court applies bargaining test to determine that Manning had options and meaningful choice

1) Weight the importance of the activity to that person’s physical or economic well-being Manning never states parachuting is necessary/ important to physical/economic wellbeing

2) Amount of free choice that could have been exercised in seeking alternate services Manning never said he couldn’t be trained by Brannon, the company actually offered a refund and offered different

facilities Anderson v. Erie Ry. Co. (EXCEPTION for consideration for burden shift)

o Tags: Exception to waivers of liability, (consideration given for assumption of liability)o Facts: Priest buys a "clerical ticket" which is cheaper, but has clause that if person buys/uses this type of ticket, he assumes all risk of

accidents and damage to person and property. Train derails and Anderson is killed.o Holding: Common law rule for common carriers i.e. RR -- for typical customers of RR, they don't have meaningful choice for

travel/cost… here, there is a meaningful choice between the ticket choice1) If this was a standard ticket, liable.

o Rule: a passenger that freely and voluntarily chooses to accept the privilege offered and having accepted that privilege cannot repudiate the conditions -- it was a contract neither party was bound to enter into, and yet one which each was at liberty to make and no public policy was violated thereby

o Policy:1) There is not an overt concern that RR will cut corners as a result bc there is still liability exposure to most standard paying

customers RR can’t have dif standard for different payment levels – thus, the overall standard would be same safety protocols There is still substantial aggregate pressure by standard paying customers

2) If this was a regular ticket, then there would be a concern that the customer has no choice in waiving liability we would lose all regulatory function of waivers

Tunkl v. Regents of the UC

o Tags: Lack of choice will negate any liability waivero Facts: Tunkl gets admitted to UCLA Medical Center and signs a release form waiving all liability for negligent or wrongful acts or

omissions of its employeeso Holding: patient is in no position to reject the agreement, admission room to hospital is not bargaining table, by signing contract,

patient is totally in the hands of hospitalo Rule: Liability waivers violate public interest if: (not all are required)

1) Party holds himself willing to perform this service for any member of the public2) D has higher bargaining power over member seeking his help3) In exercising higher bargaining power, the party offers a contract of adhesion that would otherwise have allowed a

purchaser to pay additional fees to obtain protection from negligence4) As a result of transaction, person is placed in care of seller, subject to risk to carelessness by seller/agents

o Policy:1) Waivers of liability will be voided if they violate the public interest2) Concern for bounded rationale3) If there is choice in the market, that puts pressure on the firm to take the necessary precautions – lack of choice removes

the market/self-regulation aspect4) Generally, hospital settings meet all of the elements of the TUNKL test so we don’t usually allow medical waivers

TUNKL testo Courts will not enforce when:

1) Disparity of bargaining power has grown out of economic necessity for certain goods or services or from monopolistic position of seller

2) Where an agreement does not represent a free choice on the part of P, where he is forced to accept the clause by the necessities of his situation

There may be a choice for P to walk away i.e. only one skydiving company, but there is still the choice to not participate

3) Generally, employee-employer relationships4) Where one party is charged with duty of public service5) Where there is an attempt to exculpate one from liability for the violation of a state or regulation designed to protect human

life6) Where UCC provides the limitation of consequential damages for injury to the person in the case of consumer goods is prima

facie unconscionable §496B Express Assumption of Risk

o A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from D's negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy.

Shorter v. Drury o Tags: TUNKL EXCEPTION (refusal of blood)o Facts: Jehovah's witness needed a "dilation and curettage" which had risk of bleeding; she gave instructions to receive no blood

transfusions and released the hospital from any "responsibility whatever for unfavorable reaction due to refusal for blood"; she diedo Holding:

1) There was some negligence, but the rejection of blood compounded on an otherwise fixable mistake. Reduced damages by 75% because of release.

2) Court felt that release was not against public policy Did not release Dr from negligence during surgery Release was very specific to blood transfusion (specific waiver may be more likely valid by court) Court recognizes problems that DRs can face when patients refuse blood on religious grounds, but that this is not

against public policy3) What’s the alternative? Drs turn away Jehovah’s witnesses which is a bad outcome

o Rule: Waivers of liability will not fully excuse a doctor from full liability of negligence, but can reduce the D’s recovery by the percentage that P’s own specific choice complicated the circumstances.

iii. Primary/Implied Assumption of Risk Definition: Essentially, D had no duty to protect P from harm he has suffered or D did not breach whatever duty existed. P cannot make out

even a prima facie case of liability, no duty exists. ASK:

o Are there inherent risks in this activity?o Would a reasonable person know risk and would he voluntarily engage in activity?o Who is in the best position to do the Hand Formula?o If P, then primary assumption of risk applies.

Murphy v. Steeplechase Amusement Co. o Facts: P joins friends on park attraction called "The Flopper" which is a moving belt, he falls (which everyone does really) but

fractures his kneecapo Holding: For D; the ride wasn’t out of order; P voluntarily participated in the ride and he fell which was an inherent risk of activity

anyway Woodall v. Wayne Steffner Production

o Facts: Woodall is a stuntman called the Human Kite who is hired by a company to do a stunt, he is promised an experienced driver; reminds driver to not go over 30 mph; during stunt, driver goes over 45 mph, and Woodall is injured and sues corp.

o Holding: For P P assumed all the risks within his control (wind, inherent risks of his stunt, improper gear), but the one thing that was sufficiently shifted to D and D repeated reassured P of the competence of the driver. P surrendered his judgment to D to select the driver, and it was this act that was the negligent cause of the accident.

1) Analog to consent in negligence there are boundaries to the implicit risk assumed and anything outside of those boundaries i.e. driver going above speed explicitly given is not an assumed risk.

o Rule: Assumption of risk must be free and voluntary 1) if it clearly appears from P's words that he does not consent to relieve D of the obligation to protect him, the risk is not

assumed2) if he surrenders his better judgment upon an assurance of safety or a promise of protection, he does not assume the risk

unless the danger is so obvious and so extreme that there can be no reasonable reliance upon the assurance here, the danger is not so obvious/extreme… it was foreseeable and P tried to prevent it with instruction

Hackbart v. Cincinatti Bengals Inc. o Facts: defensive back for Broncos gets hit in the back of the neck after a play ends by player for Bengals, causing a neck fracture

o Holding: For P on appeal; it was after the play; what’s inherent in the game is brutal contact but not afterIII. Strict Liability

a. Backgroundi. Imposed without regard to the degree of care that D exercisedii. Historical Development: Started with SL for Animals 19thC (Rylands) 20th C: abnormally dangerous activities Products liabilityiii. Essentially: where there is a non-natural mismatch between the risks created by D’s activities and the place where activity is being carried out

Reasonableness inquiry if D gets all the benefits, but pays all the costs b. Objective: Activity level regulation/policing where negligence would not affect change

i. If you engage in this activity, then you owe 100% of the precautions always Level of care doesn’t matter (negligent or not)ii. Consider:

Hand formula o If negligence theory an activity with high costs to society may still be considered worthwhile by an individual if the B is not high

compared PL (but PL are high)o If SL theory If D has to take on all PL every time, the B will always be high and D is likely to rethink his decision and commitment to

activity The possible risks are too high to allow for ex-poste considerations of the activity

c. When do we apply Strict Liability?i. (Residual Risk) Apply if all precautions are taken, but there is still an unreasonably high residual possibility of harm

Residual risk can be determined by look at social utility of actii. Reciprocity of Risk: where people impose risks on others at large, but are otherwise faced with similar risks posed by others

If there is reciprocity most likely NEGLIGENCE standardo If you are harmed by someone where there is reciprocity, your implicit compensation for harm is arguably knowing that you may be

NL if you are in a similar situationo Saves judicial and administrative resources

If no reciprocity SLo Where you are imposing immense risks on others, but you don’t face similar risk in returno EX. Driving a tanker or owning a tiger

iii. Location (Appropriateness)d. Cases

i. 19th C: Rylands v. Fletcher Facts: D wants to build a reservoir and while doing so, his contractors discover some old mining tunnels that they don't investigate. Once they

put the water into the reservoir, these tunnels flood and end up ruining P's coal mine which were connected via those tunnels Holding: Here, P did not choose to take on any risks arising from the uses that D chose to use his land for; P had no knowledge of what risks

might be, nor could he control D or stop D from building the reservoir; so long as D kept the water in the reservoir successfully, the duty would not have been breached.

o D went out of his way to use his land for a “non-natural” ruse and in doing so, exposed P to risks when D did not keep the water from escaping

Rule:

o Blackburn: "Person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his own peril and if he does not keep it so, is prima facie answerable for all the damage which is the natural consequence of its escape"

1) Basically, landowners SL if they brings things onto their land for their own purposes that may cause mischief if they escapeo Cairns: "the principle applies only to non-natural uses of property"

1) Basically, can enjoy land for all purposes for which the ordinary course of events it might be used, but if one introduces into the land something which is not naturally there, then they do so at their own peril SL

Up to D to decide if the activity is worth it D is in the best position to do B<PL

ii. Crowhurst v. Burial Bd of the Parish of Amersham Facts: Poisonous yew grows over iron railing that enclose D's cemetery; P's horse ends up eating some and dies Holding: For P

o Poisonous tree was like the bursting reservoir because 1) D decided to plant it when it was not a natural growing tree and 2) then D didn’t maintain it and allowed it to go beyond D’s property and cause injury to P’s property.

o SL is applicable because D is the cheapest cost avoider; D is in the best position to know the tree is poisonous. iii. Rickards v. Lothian

Facts: P is tenant in D’s building; A trespasser enters building, clogs the sink and floods the 4th floor damaging P's property Holding: For D Rylands/SL is not applicable:

o this is merely ordinary use as is proper for the general benefit for the community. It would be unreasonable for the law to regard those who install plumbing systems as doing so to their own peril.

o Activity in question is common usage arguably a natural use of lando Residual risk: probably little here w/ any kind of additional precaution caring for sinkso Reciprocity argument: w/ common use, implicit compensation comes in the form that P also has sinks in bathrooms and may NL

when tables turn on himo Intervention of a 3rd party

Rule: Ryland SL where the use of land for artificial storage of water was not a natural use and that therefore, the landowner was bound at his peril to keep the waters on his own land (special uses that increase risks to P)

Unnatural meaning: not general use nor within the contemplation of the landowners; not common or ordinaryiv. Turner v. Big Lake Oil Co.

Facts: Salt water overflowed from artificial pond for D's oil wells causing damage to P's pastures Holding: For D Here, there is a different standard of unusual usage… UK has no need for water storage in the same way that TX does, also

TX has many oil fields and salt water is a byproduct of that industry. This should be litigated under theory of negligence. Rule: Where there is substantial reciprocal risk, SL under Rylands may not be applicable.

v. Lubin v. Iowa City Facts: city had practice of leaving pipes in ground until the broke, even if the pipe was known to be almost broken Holding: For P; D is strictly liable. Although the water pipes are a natural use of land and not inherently dangerous, they become dangerous

when they’re poorly maintained.o Here, the city can afford the loss better than the restso City can also loss spread via taxes

Rule: Loss spreading Exceptiono Social utility/value cannot fully exonerate D from a higher standard of care. o the hazardous enterprise, even if socially valuable, must pay its way and make good the damage inflicted

WHY SL? o Deterrence and public interest factors in loss spreading public safety costs. o Commonality of Practice

1) Under hand formula, there might not be an incentive to take precautions because of the economic impositiono Is there residual risk?

1) Not really, since P goes down if the precaution is taken.o Reciprocity?

1) Implicit compensation does not exist here. Only the consumers would be held accountable.o Best position?

1) City they are the inspectors and in the best position to cost spread the cost and harm evenly. 2) Seems inefficient to not spread the costs and the harm since the city could remedy this by taking more precaution.

o Loss spreading1) Putting liability on city, then incentivizes the city to tax the ppl to increase regulation, and by those taxes, the citizens cost-

spread their own safetyvi. Walker Shoe Store v. Howard’s Hobby Shop

Facts: P owned a store next to D, who heated his shop with oil. The oil leaked and caused a fire that destroyed the P’s property. Holding: Court is saying that properties need to be heated and negligence should be enough to encourage people who do so with heat to use

careo Reciprocity?

1) Flexible application P does not necessarily have to also have oil heaters2) Court may look at the community at large (business/buildings inherent risk of fire)

o Common usage1) Maybe in 1982, the transition to non-oil heaters was still not complete

o Activity level1) Do we want to deter using oil to heat buildings?

o Cost spreading is not applicable here. Rule: Not SL context specific

e. Liability for (wild) Animals i. Rule: owners are liable regardless of what measures taken to prevent harm from occurring for “wild/dangerous” animals i.e. no social utilityii. Procedural: P must only show causation no breach of duty discussion (less litigation/cost)iii. Cases

Behrens v. Bertram Mills Circus o Facts: Behrens was a midget with the circus and injured while in a tent when the elephants got distracted by Mr. Whitehead

(manager)'s dog, which was not supposed to be in the tento Holding: For P Because the rule does not inquire into the tameness of an animal, the elephants actions are to be held as SL

because if there was a wild elephant doing the same action, it would clearly be SL.

o Rule: If you own a wild animal (trained/tame or not), you are SL for harm caused. D may only escape liability if there is evidence of some loss/failure of control.

1) Policy: Moral hazard of allowing even an inch of contributory negligence because then animal keepers may take less care knowing this defense is possible.

Earl v. Van Alstine o Facts: P's horses were passing by D's beehives near freeway and the bees attacked the horses and one diedo Holding: For D Because of the high social utility and value of domesticated bees and the fact that the bees have existed there for

years without incident, we hold that the bees are worthy of being read under negligence standard. 1) (residual risk) Bees are more useful than baboons and pose less residual risk when properly maintained.2) (activity level) If proper precautions are taken, do we still want to deter all safe bee-keeping?3) (reciprocity of benefits) Not everyone has bee-hives, but there is immense social benefit to bee-keeping implicit

compensation for the risk of bees is the social/communal good of pollination/agricultureo Rule: If one has an animal that is dangerous and useless, then strict liability. But if the animal is necessary to the existence of man

(dog, cow), then negligence theory applies. Candler v. Smith

o Facts: P went back to house to get something and came back to her car and a baboon that had escaped from zoo was in her car, she ran back to house and baboon tore up her money

o Holding: For P Doesn’t matter that P didn’t say how baboon escaped, a baboon is 100% wild, has low social utility, and thus must be kept under control 100% of the time and SL if not.

Smith v. Pelah (once bitten)o Once bitten Rule: Dog owner is SL for dog’s second bite; if owner has such knowledge, he is SL for it. o Statutory basis (See Rossi)

Bostock-Ferari Amusements v. Brocksmith o Facts: Horse drawn buggy, horse gets scared by sight of muzzled bear being led to its exhibit; P sues for damages and wins at trialo Holding: for D the animal that was out of control here was not the animal being faulted/doing “harm”

1) Perhaps a stronger argument would have been to say that the failed precaution was walking the bear down the street in the first place

2) Pushback: Horses get spooked by everything not useful to bane everything that’s scares themo Rule: Where there is no loss of control of the animal, but harm ensues… the court must ask who was truly at fault…

1) Does not make sense to extend liability for all harms esp one's where D is not at fault bc no breach of any care nor is there loss of control

2) Almost like “egg-shell/scared” is not a reason for SL.f. Strict Liability v. Negligence Discussion

i. Greater Accuracy Negligence likely to err in determining whether standard was breached, assigns fault/allocates blame SL Irreverent of fault -- less room for error, but concern for over-deterrence

ii. Administrative Cost Savings Negligence cases can be expensive but also better chance of winning, so more likely to bring neg. suit Per case SL is cheaper (no need for experts, etc…)

iii. Ambiguous Net Effect SL less legal expenses over al no attorneys would be willing to sue when they know that D would have always taken the necessary

precautionsiv. Activity Level effects

Better incentives (more effective)v. Additional research incentives with SL

By disciplining activity level decisions, it may force people to think more creatively about how to avoid harmful activitiesvi. Better distribution of losses throughout society (See Lubin)

g. Abnormally Dangerous Activitiesi. Indiana Harbor Belt Ry. Co. v. American Cyanamid Co.

Facts: D loaded a flammable and highly toxic liquid into one of P’s railroad cars. The bottom outlet of the car was broken and so there was a leak, which caused damages. Transport co sues manufacturer for recovery of costs.

Holding: This is not a case for SL. Accident’s cause is the transportation, not a defect or inherent dangerous nature of the product. o (Appropriateness of Location) perhaps in light of hub and spoke system (and deviating from this plan could create even greater

risks given less reliable track system)o SL = activity level (NOT PRODUCT) thus, it is a question of negligent transport, not negligent manufacturingo (high risk) product is dangerous, but if we say the transport of such a product is too dangerous, then we open the door for many

products to be nixedo (likelihood of harm) chemical is not corrosive, so the cause of the accident was not the chemical but negligence/carelessness

1) When accidents can be deterred by care, then the proper standard is negligenceo (residual risk) vast majority of chemical spills by RR are preventable by due care SL should cause only a slight increase in

liability insurance since the RR should be taking every sort of precaution already1) Different route would be expensive and unlikely to change probability of accident2) Could increase the length of journey, compel poorer tracks

o (uncommon usage) even if it were not appropriate, D (manufacturer) is not in the best position to remedy this issueo (reciprocal risk) While not everyone manufactures chemicals or keeps bees, the other social or ecological/economical benefits are

felt by society in a reciprocal benefit way, rather than reciprocal risk of people owning dogs Rule:

o Adoption of §520o Disregard for relative company size

1) Indiana Harbor is trying to get Cyanamid to take the liability and cost and share onto its thousands of shareholders, but Posner is wary that the cost will actually fall on workers…economic complexity that P did not give enough reason to do

ii. Siegler v. Kuhlman Facts: D drives truck of gasoline, does necessary safety checks, trailer jerks loose and crashed into chain link highway fence and overturns on

street below. P drives over gasoline, car ignites and she dies. Holding: For P Once gasoline begins transport it becomes a uniquely hazardous activity (compounded by the bulk, manner and quantity).

o (RIL) there is the possibility that all evidence is lost to fire1) Not 100% applicable bc there may have been negligence on a third party's fault i.e. other driver who could have caused the

accident

2) RIL would say that by driving down road you were negligent, bc there was some precaution not taken but this is not the right framework

3) SL is better framework bc by driving gas down road you are producing immense risk despite any precautions…o (Reciprocity) Driving on highways is generally more hazardous than transport via rail

1) Pushback: from an activity level view, yes SL may be best applied. But there is also the degree of reciprocal risk and implicit compensation

2) Exceptional cases: rather see non-reciprocal risk for SL -- not a normal driver on the road, driver of gas tank is not normalo (Residual Risk) Transporting gas by truck along public highways/streets is obviously a dangerous activity with high degree of risk

that cannot be eliminated by reasonable care1) Nor can there be a better way to transport gas

o (Admin Ease) gas company is also the transporterh. Respondeat Superior

i. Rule: Employers are SL for torts committed by their employees in the course of their work Traditional rule: Motive test purpose to serve the master

ii. Ira S. Bushey & Sons v. US (foreseeability test for scope of employment) Facts: US Coast Guard moors ship Tamaroa at dry dock, a drunk sailor turns some wheels on the drydock, turn out to be valves which floods

the tanks on one side, the ship and drydock partially sink Holding: For P for functional reasons

o Drunken antics like this can be seen as characteristic of employment by the Coast Guardo Foreseeable that drunken sailor would come back to ship and try to do some shipwork

Rule: Employer is SL for actions within the scope of employment. (Replaces motive test with a functional approach better allocation of resources)

o Ask: whether the prudent man knows to take precautions bc harm is likely to come from his regular work activities i.e. was the action foreseeable?

iii. Frolic/detour (question of fact) Detour: minor deviation by employee from employment task still RS usually Frolic: major deviation by employee no RS usually Joel v. Morison

o Rule: master is only liable where the servant is acting in the course of his employment Miller v. Reiman-Wuerth Co.

o Facts: D asked leave of his job at construction site to deposit checks, did so then got in collision with P on his way backo Holding: For D employee was on lunch brunch and running personal errands, no RS.

1) Rejects “happiness theory” that ER benefitted from a happier employee2) Rejects that ER had control over trip would result in RS liability always (weekends, etc)

o Rule: Scope of employment1) Time & place (closer proximity to worksite weighs in favor of RS)

Konradi v. US o Facts: Mail man is involved in a fatal car accident while driving to work

o Holding: For P USPS requires employees to take the most direct route (even if not the safest) and do no deviations, thus, USPS should be liable for accidents that result from this policy directive as it has made them more likely

1) Typically, the commute to work is not considered within "scope of employment" but here, the driving is required! (Miller : wasn't required to go to bank/come back)

2) USPS's policy requires rural drivers to use their own car, guaranteeing that employee will drive to/from work & thereby eliminating the ability to take train/bus/carpool/bike to work

Posner wants to put legal pressure to change USPS policy3) (Activity level) If all employees lived in the same area, they could potentially all just take the same bus route --- BUT the city

didn't… so there wouldn't really be an affect on quantity of employees on the roado Rule: Scope of employment should be seen through functional lens

1) activity level change/decision scope of employment can be defined by reference to the likelihood that L would induce beneficial changes in activity

For admin ease Roth v. First Natl. State Bank

o Facts: Roth runs check-cashing business and routinely cashes large sums of money, one day a teller (who observed the transactions, but wasn't involved) tells her bf about Roth, who them tips off robbers who rob Roth, but don't recover the money

o Holding: For D Not within scope of employment 1) Employee's acts were out of scope as they were entirely criminal, not in the interest of employer at all and the "tip" was not

done in time/space limits2) She had no connection to the transactions whatsoever3) Not foreseeable

o Rule: §228 and foreseeable actions rule. Forster v. Red Top Sedan Service

o Facts: Forsters are driving to airport when driver of Red Top bus tries to run them off driveway, blocks them then punches them.o Holding: For P The driver was acting in scope/interest of employer

1) Functionalist rationale: employer policy for strict schedule i.e. policy choice Reina v. Metropolitan Dade County

o Facts: P was a passenger on D's buses, got into argument with driver over fare and not stopping when cord was pulled; gets lets off in the middle of the streets, gives obscene gesture and bus driver chases him down and beats him

o Holding: For D Driver fought with customer over personal vendetta.iv. Contractors

Miami Herald Publishing Co. v. Kendall o Facts: Molesworth was delivering Miami Herald papers, runs over Po Holding: Newscarriers are independent contractors, the Herald did not have control over method of distribution.

1) Contract b/w Molesworth and Herald states that newscarrier is an independent contractor and Herald has no control over "his method of distributing or otherwise handling the delivery"

2) It was 100% in Molesworth's control how he delivered paperso Rule: Essentially adopts §220 Definition of Servant

IV. Causation

a. Background i. Where P was harmed, D’s actions were negligent (failed to satisfy operable standard of care) QUESTION: But was P’s harm caused by D?

P must establish this with a preponderance of evidence (more likely than not) that it was D’s negligence that caused the injuryii. Ask:

Whether injuries would have occurred if D had used due care But-for D’s negligence, would the injury have occurred?

Causation in battery

Vosburg: Did the light tap "cause" the severe injury? Or is that not the "cause" of the injury? Jury ends up finding that the tap significantly aggravated the previous injury and caused the damage.

Causation in Strict Liability

D is liable no matter what duty of care of taken, but the causation piece is required to show that D's negligent actions caused the harm in the first place.

Causation in Negligence per se

Herzog : The background risk of buggy not having the lights on. Negligence per se because no lights, which was contributory negligence so bars recovery. But, there was also instruction to remand for fact-finding to see if lights would have actually made a difference as there was allegedly ample ambient light that night. SO the question is was the lack of buggy lights a major cause of the accident? If not, then D's case for contributory negligence would be weaker than if it significantly impacted D's ability to see and prevent accident.

b. But-for-Causationi. NY Central RR v. Grimstadt

Facts: P is captain of barge, a tugboat bumps the barge and he falls into the water, P’s wife tries to find rope/lifesaving equipment, but when she returns with it he drowns and dies

Holding: For D The background risk of the inability to swim was greater factor in death than lack of or placement of lifesaving equipment.o Framing of negligence: “cause in fact” = falling into water; negligence = no lifesaving equipmento There was no definitive showing that “due care” aka buoy that would have saved P

Rule: IS Y (background risk) at least half as much as X (D’s negligence)? Is D responsible for over 50% of the deaths? Potential Arguments:

o For P1) Broad: Frame negligence as lack of net to prevent falling into water show that D should have never even hit the water2) P would not have died, but-for D’s failure to add safety nets3) Would make establishing negligence more difficult though B is much higher if you ask for nets all the way around boat

ii. Herskovits v. Group Health Cooperative of Puget Sound Facts: P’s doctors misdiagnose him and reduce his survival chance from 39% survival (61% death) to 25% survival (75% death)

o Consider: Normally, you can’t recover because 61% death rate is already more likely than not P may dieo Causation: D’s failure to diagnose at Stage 1 resulted in 15% reduction in chance of survival

Holding: The doctor's misdiagnosis was the injury and negligence, which established cause-in-fact without the need for a preponderance of evidence. Damages will likely be reduced to the physicians % liable, which here is 19%.

Rule: Loss of chance exception (very rare, and generally only for medical cases)o Policy: To deter doctors/hospitals from thinking they can shirk medical responsibility when patients have less than 50% chance of

death c. Alternative Liability (EXCEPTIONS)

i. Here, P would have to prove causation for D1 separately, and D2 separately… which in this case is impossible for P to know.ii. Policy:

Seems fair/just to allow P to recover without preponderance…but market share/AL is quite a departure from traditional tort law which usually is between a P who proves D wronged her

(Deterrence) Attempt to deter bad behavior/regulate behavior for future D to incentivize the best behavioro Sindell : if P would never be able to recover for injury from untraceable products, then there is a weak incentive to adhere to proper

warning labels/manufacturingiii. Summers v. Tice

Facts: P was quail hunting with D's (2 ppl) and gets shot in the face by bird shot when they all line up in a triangle to hunt Holding: For P Both D's are wrongdoers, both negligent--> thus the responsibility falls on each D to prove the other is more at fault or that

he is lesso Rule: "if party cannot identify which of two or more Ds caused an injury, the burden of proof may shift to the Ds to show that they

were not responsible for the harm." (alternative liability) 1) Thus, this is a doctrine that allows P to recover in full(jointly/separately liable Ds, who will contribute certain $$ of full

recovery); shifts the burden to Ds to exonerate themselves from liability.2) Analogous to Ybarra: by res ipsa loquitur, P has proven that negligence was the proximate cause of injury -- up to D's to

show who/how3) Summer: both Ds were negligent. 50/50 chance that one of the Ds is the negligent actor. does not impose a requirement

that D be in a better position (i.e. "must have greater access to information regarding the cause of the injuries") than P4) Ybarra : There was negligence in the surgical room and that negligence caused the harm. But we don't know whose

negligence it was, and therefore, who caused the harm. Only 1 unknown negligent actor.o More likely to apply Summers exception when 50/50, less when it’s more than 2Ds

iv. Kingston v. Chicago & NW Ry Co. Facts: 2 fires (NW fire had unknown origin, NE fire was caused by D's train sparks) unite and burn down P's lumberyard; the fires were the

same size and either would have evidently destroyed P's property on its own Holding: For P no burden of proof on P to prove the origin of both fires in order to recover the damages for which either or both fires are

responsibleo If second fire was truly non-negligent in cause, then P should not be able to recover from negligent D. If an act of nature would have

caused fire anyways, then D may escape liability.o both fires were sufficient causes of harm (or would have been), but we only know for a fact that one of the fires was negligently

created. (there is the possibility that the other fire is "not in the wrong"… and if so, D may get off since his negligence is negated by the naturally caused fire which is another sufficient cause of injury)

Rule: (Kingston exception: if sufficient cause of harm could have come from non-negligent source too, P is still allowed to recover if uncertain.)

v. Litzman v. Humboldt County Facts: Child picks up a flare at the County Fair and loses his hand; the type of flare could only have been brought by either of 2 Ds Holding: Apply Summers and add SL to get cause-in-fact. Ybarra doesn’t apply bc no chance to observe.

o AL: We know there are only 2 sources of the bomb in the area. Burden shifting to D to show how it was not the negligent party. Then if D can't prove that, the possibility that D was the negligent party should allow for AL standard.

o Bolstered by SL: Desire to deter "ultra hazardous" activities i.e. use of aerial bombs near children and thus, if D can't prove it wasn't negligent, but uses these dangerous items -- it should probably have a better inventory system to ensure 100% standard of care

d. Market Share Liabilityi. Sindell v. Abbott Laboratories

Facts: Each manufacturer created an identical form of DES, which caused a unique form of cancer, but it was difficult for Ps to determine which manufacturer provided the exact batch that each mother took.

Holding: For P o If we used Summers: it would be difficult for Ds to show any evidence beyond years of operation or color of pill that may exonerate

them.o P argues that Eli Lilly and company and 5 or 6 other companies produced 90% -- if true, then only 10% chance maker would escape

liability Rule: Market Share Liability exception

o To establish market share liability exception, P has the burden to enjoin the largest market share producers, then the burden shifts to Ds to counter-claim and prove their own innocence…otherwise, Ds will be liable for their % of market share

1) Court will allow recovery if not 100% of market represented in suito Court allows P to recover without proving preponderance of evidence, but limits the recovery to the share % of the D as a proxy to

their liabilityo Key factors that when present will make it more likely that courts will employ market share liability:

1) Time lapse2) Inability to identify manufacturer3) Identical chemical formulations *4) Signature disease* (rarity)

Extremely critical to show/prove that this singular drug was the direct, sole cause of injury Disadvantages of Market share liability

o Local or national rule?1) i.e. in CA, distribution of sales may differ from other states markets2) Generally, court defers to national market

o Do you apportion liability based on your overall market share or the % based on the group of D’s?o Why is it better for pharm?

1) Manufacturers all produce generally the same formula, then the effects will be the same regardless of exact manufacturer2) Thus, we don’t need to determine the difference in the nature of chemical formula/extent of injury if we are just stressing

the amount/market share since the product/injury is the same.ii. Distinguish RIL and alternative liability

R2d Torts, §433A Apportionment of Harm to Causes

o Illustration 3. Five dogs owned by A and B enter C's farm and kill ten of C's sheep. There is evidence that three of the dogs are owned by A and two by B, and that all of the dogs are of the same general size and ferocity. On the basis of this evidence, A may be held liable for the death of six of the sheep, and B liable for the death of four.

iii. R2d Torts, §433B Burden of Proof Illustration 10. Over a period of three years A successively stores his furniture in warehouses operated by B, C, and D. At the end of that time A

finds that his piano has been damaged by a large dent in one corner. The nature of the dent indicates that it was caused by careless handling on a single occasion. A has the burden of proving whether the dent was caused by the negligence of B, C, or D.

o Summers: does not apply here because it is not clear that all parties are negligent. o Ybarra: It's not clear there are enough facts to show there is a relationship between parties, nor that they could monitor one

another. o Thus, if P can't establish either ^, he must either do more work on proving causation or not recover.

iv. Illustration 11. While A's automobile is stopped at an intersection, it is struck in the rear by B's negligently driven car. Immediately afterward C's negligently driven car strikes the rear of B's car, causing a second impact upon A's car. In one collision or the other, A sustains an injury to his neck and shoulder. In A's action against B and C, each defendant has the burden of proving that his conduct did not cause the injury. --> A did not have control

e. Proximate Causation: Remoteness and Foreseeabilityi. Ask: Whether P’s harm is too attenuated or removed from D’s actions such that liability makes no senseii. HYPOS:

D leaves a tin of rat poison beside a container of flour on a shelf next to a kitchen stove. A house guest is making breakfast next to the stove one morning. The heat from the stove unexpectedly causes the poison to expand within the tin, causing it to fall off the shelf, hurting the guest's foot. Should we hold D liable?

o Seems remote. The fact that rat poison would expand and fall is not really foreseeable. Also, a damage to one's foot is not the expected injury that one expects from rat poison.

o Precaution: Not putting rat poison in safer place or marking it. Could easily mitigate the risk of people mistaking rat poison for food ingredient.

o Alleged negligence: Putting unmarked rat poison in tin next to stove and putting guests at risk who don't know of this danger. o Proximate cause: No.

1) Real harm here is ingestion. This type of harm is outside of the types of risk that are in contemplation. 2) Framed as stronger/broader case: Rat poison causes harm. D was the only person in the position to know that the rat poison

was even a contemplated harm while in the kitchen, ingestion or otherwise. Ingestion is not necessary because the rat poison posed a threat to humans. Still would need to defeat the counter that injury to intestines is different/separate than damage to foot by the box.

3) Analogous to cauldron case: we are aware of risks, but the chemical risk are not in the foreseeable realm of risk. o Outcome: probably no recovery.

D parks next to fire hydrant. P skids on ice and drives into D's car. Should D be liable to P for negligence?o Absent contributory negligence -- if P is suing on grounds that D is negligent for parking near fire hydrant, is this a good case for

liability?o Standard: Don't park near fire hydrant.o Breach: Negligence per se. (policy probably included safety concerns)

o Proximate Cause: No.1) The real safety consideration relates to fires and for firefighters to access hydrant to put out fires. 2) Entire PL discussion relates to fire. 3) This car accident risk is not connected to the precaution of not parking near hydrant. Not in the set of risks calculated.4) Did actions of D increase the probability of P skidding into a parked car?

o Pushback:1) Reliance argument: A driver who relies on the notion that there is a hydrant in the area and makes a wider turn and still

skids and crashes into it. There is a connection between D's illegal parking of car (D's negligent action) and the damage that occurred.

2) Analogous to Tingle. Trolley is speeding down track, far exceeding relevant speed limits. Lightning strikes tree which quickly falls towards the tracks, striking the

trolley just as the tree reached the tracks. P, passenger is hurt. Can D be sued for negligence?o If P sues D under theory of negligence for negligently operating train, "speeding"o Does it make sense to hold D liable? I think so. While the lightning strike is not foreseeable, there is a huge amount of foreseeable

risk that comes from speeding trains such as derailment for any other reason. o Negligence: Don't speed.o Cause in fact: Was the negligence or background risk the cause in fact?

1) Something natural combines with a human negligent act to result in the harm.2) This accident could not have occurred "but-for" the speeding.

o Damages: injuryo Proximate Cause: Close Call.

1) The set of risks of speeding include derailment, everything that comes with exceeding the capacity of the railway. 2) There is a connection between speeding and the inability to stop the train/react to something that a non-speeding trolley

would be able to react to properly.3) ^^We may need more facts to have a strong, winning case.

o Pushback: More likely no on these facts.1) Maybe should have sped even more then it would have avoided the tree. 2) There is a disconnect between the speeding and the tree. This could have happened to a non-speeding trolley.3) Reliance: If driver is relying on good weather and for trees to fall slowly at the very least which would give one time to react

and stop. In Re Polemis : (NOT GOOD LAW, but perhaps use as a source of alternative prox cause)

o Foreseeability of exact damage is immaterial if the negligence would have caused harm regardlesso Operating rule: "once the act is negligent, the fact that is exact operation was not foreseen is immaterial."o Issues with "direct consequence" theory

1) Without foreseeability, there is no incentive or reason to deter if D has no way to protect against liability 2) Deterrence, as one of the key tort objectives, is all about D knowing risks and legal consequences, but if there is a

consequence that is not reasonably possible to anticipate, that make over-deter 3) Direct consequences is vague -- it is a subjective line of when something transitions from direct to indirect – no admin

ease/consistency of law

Wagon Mound No. 1 o Facts: D spilled oil into bay when it got to P’s wharf; P suspends operations to inspect, then resumes when a worker accidentally

drops molten metal onto oil which damages dock and shipso Holding: For D "Reasonable man foreseeability"

1) The risk of fire was unforeseeable for D; P had initially stopped operations, assessed the damage and resumed operations (that had fire component) while there was still oil. There's an element of P contributory negligence -- working with fire-related tools in vicinity of oil in water.

o Rule: Foreseeability becomes test for type of harm and extent Wagon Mound No 2.

o Facts: P were owners of destroyed shipso Holding: P's were in no way contributory negligent. Completely innocent victim here.

Petition of Kinsman Transit Co. o Facts: Initial wrongdoing of negligent deadman maintenance leads to a chain reaction of extreme damageo Holding: For P "Damages resulted from the same physical forces whose existence required the exercise of greater care than was

displayed and were of the same general sort that was expectable, un-foreseeability of the exact developments and of the extent of the loss will not limit liability."

1) Set of risks: The boat might crash into another boat, hit something and sink. Do we foresee that second crash in setting the chain of reactions. Appeals court says foreseeable that improper construction and inspection of the deadman might cause a ship to

break loose and damage person or property on the river (Ex. Of unforeseeable harm = doctor who can't get across bridge and patient sues D)

2) Proximate Cause: Distinction between: Foreseeability, type of harm, extent of harm. Here, the unforeseeable element is the "extent of harm" -- yes, structural damage occurred, but definitely not to

this absurd extent. Foreseeable type of harm though. Negligent deadman could foreseeably cause damage to structure around it.

o Rule: Egg-shell rule; unforeseeable extent of damages doesn’t matter for foreseeable types of harm1) Unforeseeable extent of damages does not break proximate cause chain

Doughty v. Turner o Facts: cement cover falls into cauldron; it explodes and injures Po Holding: For D D could not have reasonably known or foreseen that cover falling into liquid would result in injury if done

intentionally, then he cannot be held liable for unintentional act" since there was no duty to avoid.o Rule: "if the act which he does is not one which he could reasonably foresee would injure… matters not whether he does it

intentionally or inadvertently." Colonial Inn Motor Lodge v. Gay

o Facts: D was backing his car up in P's hotel parking lot and hits a heating unit protruding from the building; thought it was just a brick wall, so D drove away; witnesses later stated that they had heard a loud bang; gas collects inside hotel, is ignited by pilot light in laundry room and explosion and damage cause hotel to shut down

o Holding: For P There was no intervention of unforeseeable third party as an intervening or additional cause because once D hit P’s building, the sequence of events that caused the explosion was set in motion with no further action needed to bring about the injury.

o Rule: Substantial factor If D’s conduct is a substantial factor in bringing about the injury, it is not necessary that the extent of the harm or the exact manner in which it occurred could be reasonable foreseen.

1) Eggshell skull: "D must take as he finds him, even if P's eggshell skull results in his suffering an injury that is not reasonably foreseeable."

o Negligence: Careless backing upo Set of risks:

1) Probable: dent2) Low probability/ Foreseeable: fire if a heating unit or gas unit is hit.

o Proximate Cause:1) P: Buildings have heating systems, and people know that they might be outside. It is reasonable to assume there are things

that might be damageable outside. There was a witness who was startled by loud noise. Hitting a heating unit on the outside has foreseeable (maybe not probable) risk of fire.

2) D: Going 2 mph, the type of harm foreseeable was that the car or wall might be dented. Not to the extent that backing up would put a hotel out of business.

o Conclusion -- not good case for SJ, needs to go to jury for fact-finding1) Ask does jury find the type of harm foreseeable, and if so, we would apply the eggshell skull rule.

DiPonzio v. Riordan o Facts: P gets hit by an unoccupied car while at a gas station; the other car had left its motor running while filling with gas as the

owner went to pay attendant; there was a policy that patrons were to turn off engines while fuelingo Holding For D enforcement of this policy did not intend to prevent this type of harm.o Negligence: Gas station has policy that monitors/encourages safe environment at their gas station; untaken precaution is the failure

to monitor/enforce the policy.o Cause in fact: "but for" car engine still on, the car wouldn't have changed gears? Idk… but that seems to be the assumption to get to

proximate cause question. o Set of risks: Fireo Proximate Cause:

1) P: Failure to enforce a policy that would protect from harm to patrons by cars that were not turned off. The type of harm is harm to patrons by unmanned/cars with engines still on. The manifestation of that harm does not change the physical type of harm that occurred. The harm is not just fire if engines are on, but also foreseeable that cars with engines on might shift gears.

2) Courts picks narrow --> D: The risk of non-enforcement is fire, not that a car would shift gears. The shifting of gears risk was not a motivating risk in creating the policy.

United Novelty Co. v. Danielso Facts: D's employer instructed P to clean machines with gasoline, a rat under the machine that P was cleaning (getting covered in

gasoline), ran under the heater, setting the rat on fire, which in turn ignited the room bc of the fumes P was using to clean; P dies and estate brings suit

o Holding: For P It is foreseeable that you would have an explosion in a room with a gas heater and someone cleans with gas. The fact that the risk materialized in an absurd was is irrelevant. The type of risk was foreseeable, how it happened (i.e. rat) does not matter. It is still a low probability risk, not an unforeseeable risk.

o Negligence: negligent in instruction to clean with gasoline in room containing a gas heatero Set of risks: Fireo Proximate Cause:

1) Kinsman: Not proper maintenance that risks and threatens neighboring structures/people. Manner and extent of harm is irrelevant if the type of risk is foreseeable and the B is much lower than PL. The absurdity of the events does not matter because the possibility is low, but present.

2) D: Rat was an intervening third party cause that broke the proximate cause chain. It was not foreseeable a rat would act like a torch and carry actual flame.

3) Palsgrath : "zone of danger" -- the area which was being cleaned with a rag of gasoline is not close enough to the boiler room/gas heater that a live flame is a foreseeable risk.

Steinhauser v. Hertz Corp o Facts: D's car collided with P's car, but no one suffered bodily injuries. One of the passengers in P's car started exhibiting unusual

behavior immediately after the accident (glassy-eyed, agitated) and in the following days she became increasingly paranoid, aggressive and suicidal; was diagnosed as schizophrenic

o Holding: For P Broad harm:1) Damage to the person from negligent driving. This was a psychological damage from the accident. It is foreseeable that a

person might have some psychological harm, PTSD, and thus, under the eggshell skull rule, extent does not matter. Central of GA Ry. V.

o Facts: P missed her stop on D's train (due to conductor's negligence) and so the conductor took her to a hotel and paid for her expenses so she could take the morning train back; that night, P left a kerosene lamp on after going to bed, her mosquito net caught fire and she burned her hands extinguishing the flames

o Holding: For D 1) Intervening act of the hotel here, the train put her in their care. This situation could have happened to any guest, not to a

guest who was put there by the train. There is no connection between her being there because of the conductor's negligence and her just being at the hotel. The railway's negligence does not fundamentally increase the likelihood that this could have happened.

Trolley : No fundamental link between speeding train and tree compared to non speeding train to tree. Skidding car : Just as easily skid into parked car legally parked. Fact that illegally parked does not fundamentally

change the probability of the risk. o Potential Arguments

1) P: The missed stop was the connection between her and that lamp. Maybe this was an accident at a hotel, but if P was off at the right stop, she might not have been at a hotel at all with a non-kerosene light source. The connection between negligence (causing P to miss stop) and being in a situation with dangerous kerosene lamp. Likewise, maybe her original stop is a safer area and the stop she ended up at was a much more dangerous or lower quality hotel area.

2) Response: Still, if you ever used a kerosene lamp, the risk is the same regardless of where you are. Pridham v. Cash

o Facts: clerk at D's showroom negligently untied a rope securing some panels that then fell onto P's decedent; P couldn't move his legs so he was put in ambulance, but the driver had a heart attack and drove into a tree; P died in the crash

o Holding: Here the medical professional was not really negligent since he had a heart attack, which no one could have foreseen. But still, the case is not distinguishable from the rule as the rules does not ask foreseeability of the extent of consequential medical harm, it acts in proxy and just says aid rendered D is also liable for.

1) Trolley: Could have happened just as easily if friend or Uber was driving them and the driver had a heart attack and they died. Freakish that the ambulance driver happened to be the one where it happened.

o Pridham Rule: "if D is liable to P in this case, he is also liable for any bodily harm resulting from normal efforts of third persons render aid…which the other's injury reasonably requires irrespective of whether such acts are done (negligently or properly)”

1) Exceptions: where the rendering of medical care/aid is grossly negligent, the court will allow for intervening cause exception that would then break the proximate cause chain. It has to be more than regular medical negligence.

f. Proximate Causation: Intervening Causesi. Intervening Cause = where D commits an act of negligence that produces harm when combined with a subsequent act of wrongdoing

(negligence or worse) by some third party Key Q: At what point do we say this intervening act cut off D’s liability and negates proximate causation? At what point does it become a

superseding cause?o Ex. Foreseeable type of harm can be an intervening act of third party. Denies MOL that third party intervening acts are not 100%

cutting the proximate cause chain1) I.e. criminal acts might not break the chain if its foreseeable that criminality might ensure

ii. Brauer v. NY Central Foreseeable criminal acts do not break proximate cause chain when foreseeable by D theft scenario (common crime v. a more uncommon

intense/crime) Facts: D's train hits P's wagon, killing P's horse and destroying his wagon; some unknown bandits stole the remaining contents of the wagon

(keg of cider, barrels, blanket) Holding: For P the Ry. Should have known that unguarded property was likely to be stolen as they themselves had 2 guards

o The negligence which caused the collision resulted immediately in such a condition of the driver that he was no longer able to protect his employer’s property

Rule: If there is something about D’s wrongdoing that created an especially enticing opportunity for theft, then D is L. o Foreseeability question: Did the act of negligence fundamentally increase the likelihood of crime that caused damage? Did D's

negligence create an especially enticing situation for crime?iii. Watson v. Kentucky & Indiana Bridge & RR

Facts: D's railroad car negligently derailed and spilled its cargo of gasoline; a man Duerr lit the gas on fire and the resulting explosion knocked P out of bed and demolished most of his house

Holding: For D BC of conflicting evidence b/w negligent wrongdoing v. criminal act, it is foreseeable that ppl might light a match. D is L if it was careless to do so, but if some committed arson and intentionally lit a match, then that act of criminality would break the chain.

o Brauer : If yes, the proximate cause chain is broken and original D is liable. (in theft fact scenario where theft is a bit more common/inkling of theft)

o (If purposeful arson) Watson: Not everyone has an inkling of arson in them. How common is the arson crime in the community? If everyone does has a sort of inkling/foreseeable act on arson behaviors, then it might not break the proximate chain. If it's not foreseeable in a community to see a lot of arson, then this is not unforeseeable and would break the chain.

iv. Cases where town’s wrongdoing creates scenario Village of Carterville v. Cook

o Facts: D village maintained a sidewalk elevated 6 ft up with no railing; P was walking and jostled by someone and he fell and injured himself

o Issue: intervening act of negligence; city's construction of sidewalks was negligent, but did this create a necessarily enticing opportunity for wrongdoers?

o Holding: For P 1) There is a likely chance that someone will fall off (purposefully or accidental) if the city has no handrail. Consider a Hand

formula here. Is the injury that occurred within the set of risks that we calculated into our Hand Formula…If yes, this is generally sufficient to provide proximate cause. On most sidewalks, a bump is not dangerous … but in an elevated sidewalk there is a risk of injury if there is no hand rail protection.

o Possible Argument for D: Not really since there was no real intention of wrongdoing… an accidental bump Alexander v. Town of New Castle

o Facts: P is chasing Heavenridge , a gambler, and arrests him in this town; the town convicts him of gaming and as P is leading him to jail, Heavenridge picks up P and throws him in an uncovered pit on sidewalk

o Holding: For D 1) The pit's foreseeable set of risks from the risks are people falling in without watching. A criminal tossing someone into the

pit to escape is not in the set of risks. 2) The criminal's decision to use the pit to escape is not clearly the best and only decision he could have made. Heavensridge

could have just as easily tripped or hit Alexander to escape. 3) It was not foreseeable that the pit's existence would lead to a criminal act, perhaps just a negligent fall or injury.

o Potential arguments for P:1) Heavensridge would not have attempted to escape, but-for the actions of the city leaving the pit open on the route.2) (Combination of forces) The pit combined with the wrongdoer to create the situation. On one's own, the pit nor the criminal

would have solely led to the harm seen here. 3) Kingston : Both fires were sufficient forces to create the harm on it's own. The combination of the two forces did not

exceptionally change the risk of damage to property. v. Scott v. Shephard

Facts: D tossed a lighted firecracker (squib) into a crowded market; it landed near a man who immediately threw it to protect himself, then it landed next to a man who again tossed it and it landed in front of P at which point it exploded and he lost an eye

Holding: For P Any person removing the danger from himself to another is justifiable because the blame lies with the first person. The intervention of a free agent will make a difference, but those acting under compulsive need for their own safety and self preservation (see Laidlaw) are not free agents.

vi. The Roman Prince Facts: P was in cabin of a barge, when D's steamship (The Roman Prince) negligently steered into the barge and caused a leak; P saw leak but

did not board a different barge b/c she didn't think it would sink; it starks to sink; P injures her knee trying to escape

Holding: For D collision is not proximate cause of injuries bc P had time to get off the boat that she knew was damaged; the stumbling on her part can not be reasonably attributed to the collision – all kinds of decisions she made in between that led to the circumstances

Rule: Where P had time to deliberate the situation, she canny recover. If she didn’t have this time to make decisions (See Squib) might be different

vii. Thompson v. White Facts: P was passenger in car struck by D while nearby Gulf gas station; gas station had clowns waving signs and on the road, sort of distracted

driver of P's car Holding: Reversed it is reasonable that D was distracted by Gulf's clowns, his negligence is a concurring cause and not "independent,

intervening cause" that would insulate Gulf from liabilityo Reasonable jury could find that clowns were on the traveled portion of the highway, clown's activities were such that would

naturally and probably distract motorists, and the activity probably did distract D causing him to drive his car into P Rule: Concurring negligence does not break proximate cause chain.

viii. Johnson v. Kosmos Portland Cement Co. Facts: D’s barge hauled oil and gases accumulated in barge's hold; D negligently failed to remove the gases before getting P's decedents to

work on the barge with a torch; gases ignited killing everyone on board, but the cause of the fatal spark was lightning (not torch) Holding: For P the sort of risk here was foreseeable from the negligence. That something may cause a spark was foreseeable. Manner of

flame is not relevant (See rat case). Watson: explosion could not have occurred without the "primary negligence" of failure to remove gas.ix. Henry v. Houston Lightning & Power Co.

Facts: D's employee were drilling a hole for utility pole and negligently severed an underground gas line; P is called in to repair broken line when fog from mosquito fogger used on other manhole started filling the space; fellow employee yelled fire and Henry fearing gas would explode ran out of hole and into pole, injuring his shoulder

Holding: For P the mosquito fogger did not break the proximate chain from D’s original negligence Rule: whether the negligent "act or omission was a substantial factor in bringing about injury," without which the harm would not have

occurred. x. Clark v. EI Dupont

Facts: D was hired to assist in drilling of oil well; D left a pail of explosive, solidified glycerin and McDowell's son took it home to keep it out of harm's way; his mother didn't want it in the house so he hid it in a graveyard; 2 years later, Clark boys find the pail and thinking it is animal fat, they try to break off a piece by hitting it on rock and it explodes

Holding: For P foreseeable type of harm; negligent disposal; Yes proximate cause, b/c “power of doing mischief was inherent in the” dynamite.

xi. Richardson v. Ham Facts: D's employees negligently left bulldozer unlocked; two drunk men found it and drove it around causing various damage, couldn’t turn it

off, so they headed it towards edge of mesa and abandoned it, it went over edge, across freeway, through a house and car being being stopped by a wall/utility pole

Holding: For P duty owed by the defendant included a duty to protect the plaintiffs from intentional misconduct and such misconduct did not constitute a superseding cause of the plaintiffs' harm.

Rule: Danger posed by heavy machinery creates a duty to third parties to protect form misfeasance.g. Palsgraf v. Long Island RR Co

i. Facts: P was standing on platform of D's train; guards help man w/package on; but in doing so the package fell; the package had fireworks (nothing about package gave notice to its contents) and the shock of the explosion "threw down some scales" at the other end of the platform that hit and injured P

ii. Holding: For D P was not a foreseeable . Negligence: D’s manner of helping man on train Cause in fact: the dropped fireworks either caused the scales to fall because the sound waves or the stampede created by explosion When can transferred intent be applied?

o (Direct) If one looks at the activity and knows it is dangerouso Those within the foreseeable zone of danger from the negligent – D owes a duty to all in that zone Here, P was not in zone, so no

duty owed. (MOL)o Here there is difficulty transferring a property interest from “real” P (firework loss) to personal, bodily interest for this P

iii. Rule: To predict foreseeability, ask if this is a foreseeable type of harm to a foreseeable plaintiff. Ask whether P was in the foreseeable zone do danger. Manner of foreseeable damages does not matter (Palsgraf/Kinsman)

iv. Andrews Dissent: When doing an affirmative action, you owe a duty to everyone. We should draw lines between who is and isn’t owed a duty. This is a question of proximate cause (Jury). Factors to consider: must be at the least something without which the event would not happen

o Whether there was a natural and continuous sequences between cause and effecto Was the one a substantial factor in producing the other?o Was there a direct connection between them without too many intervening causes?o Is the effect of cause on result not too attenuated?o Is the cause likely in the usual judgment of mankind to produce the result?o BY the exercise of prudent foresight could the result be foreseen?o Is the result too remote from the cause (time and space?)

1) Greater the distance the more surely other causes will intervene to affect the result. Taken this way, P should have been allowed to recover.

o Negligent dropping of package was a substantial factor in producing the result, no remoteness of time/space, and thus injury in some form was possible to P on train track.

V. Nuisancea. Definition: when a landowner interferes with a neighbor’s ability to use and enjoy his property

i. Generally, involves 2 parties who know each other and live side by side with one inflicting certain costs on the other ii. Injury is a byproduct of some activity that may produce considerable public and private benefitiii. Difference than trespass (physical intrusion), here it’s more like odors, sound saves (non-physical intrusion)

b. Public nuisance:i. Land use that is an offense against the state because it violates a law criminal statute and can be abated by suit by prosecutor/public agency

c. Private Nuisance:i. One private party inflict damages on another

d. Remedy i. Nuisances are often continual (not one time) repeated actions seem to become more of an intentional act

ii. Damages v. Injunction Damages: suffered harm, deserve damages … but doesn’t address any future harm

o Courts don’t want the legal outcome to be repeated litigation to get damages if the nuisance continueso If the harm has a projected end-date, courts can calculate the sum of all current/future damages

Injunction: Stop the actiono Tension – disadvantages of nuisance theory

1) (Bramwell in Bamford): different sort of harm is one neighbor can stop a beneficial act of another even if it causes moderate nuisance

2) We want to encourage people to engage in beneficial actions3) (personal autonomy) ppl should have liberty to do “valuable” things on their property4) neighbors have the same right how do we balance these competing interests/rights

iii. In Practice courts give damages for harm suffered…may provide an injunction wants to encourage parties to come together to make a private agreement Disadvantages of injunction only:

o Consider: single owner theory of maximization of resources pieo High bargaining costs -> if negotiations break down and beneficial activity is stopped, then there is actually no net gain for society o Ex. Bargaining costs

1) difficulty of asking people to aggregate interests to bargain2) free rider problem3) public good problem (not worth the initiative to step up/organize if nothing happens4) hold out problem – risk of stubborn people who don’t come to consensus and disrupt the bargaining process

o Assumes rational mindset people generally engage in strategic behavioriv. Benefits of injunction + damages:

Allow the courts to compensate and project future costs rather than putting the onus on partiesv. (Negligence perspective) some courts will just say no nuisance if the value is very high and can’t justify a costvi. Diminishing margin of utility of wealth

At what point does the cost incurred outweigh/make the profits diminished? Distinction between economic efficiency and social utility maximization

o Social utility maximization society doesn’t want to incur costs of production…maximization for the whole group of society is not to be harmed

o Economic maximization get the most profitso Essentially different competing models with difference objectives and ask different results of the inquiry

e. Bamford v. Turnley i. Facts: P claimed that D was committing nuisance by using his land for making bricks and being noisy/causing dust. Neighbor sues D for nuisance.ii. Holding: For P there is no notion of reciprocity here, thus SL for harm caused pay damages.

Rejects social utility argument see takings concept (may take land for public use, but always compensate)iii. Rule:

Wanton/malicious act is actionable as nuisance if it causes “sensible diminution of the comfortable enjoyment” of P’s property without D’s justification

sic utere tuo ut alienum non laedas (use your own property in such a manner as not to injure that of another) o Reasonable uses: “burning weeds, emptying cesspools, noises during repairs, other instances which would be nuisances if done

wantonly or maliciously, but nevertheless may be lawfully done.”o Implied notion of reciprocity

Burden of proof is on D to prove act is necessary for the “common and ordinary use and occupation of land”f. Jost v. Dairyland Power Cooperative (SL-esque)

i. Facts: P's crops were damaged y D's coal burning power plant (whitened alfalfa leaves, killed pine trees, made it difficult to raise flowers, damaged fruit)

ii. Holding: For P the court rejects the relative economic utility argument The harm imposed is a cost of business thus needs to compensate as it should be built into costs See Takings concept

iii. Rule: There is a duty to compensate when injuring (intentionally), even lawfully. Sl type. when the actor knows of the nature of the injury inflicted it is an intentional tort and the fact the harm was administered non-negligently is

not a defense to liability" Freedom from negligence is no defense if the consequences of the continued conduct nevertheless cause substantial injury to P If action is beneficial and done with due care + harm still L Even if benefit >> harm L

iv. Disadvantages with Jost Rule Why should P’s right extend over D’s right?

o Consider B>PL – activity level decision… gain all the benefits and costs Can SL be squared with social need for factories, airports or other uses of land that inevitably impose costs on nearby property owners?

v. Ways to fix SL (Epstein) If these factors are prominent, relax the SL requirement:

o High admin costs for claim resolutiono High transactions costs for voluntary reassignment of rights

1) High frequency events w/ little consequence can't reasonably be compensated in this way without imposing crazy high transaction costs on society

o Low value to the interested parties of the ownership rights whose rearrangement is mandated by the public rule o Presence of implicit in-kind compensation from all to all that precludes any systematic redistribution of wealth among the interested

parties (similar to Bramwell's opinion)g. Carpenter v. Double R. Cattle Co. (Negligence-esque)

i. Facts: P resided by D's cattle feedlot that generated noxious odors, swarms of insects, water pollution that damaged P's propertyii. Holding: For D

Idaho is sparsely populated and its economy depends largely upon the benefits of agriculture claiming cattle ranch as nuisance would be unreasonable burden upon these industries

iii. Rule: Negligence-esque inquiry balance competing interests to determine existence of nuisance and remedy Factors in interests of the community i.e. utility of the conduct

iv. Disadvantages of Carpenter Rule

Relies on outdated economic view Cost of production also includes calculating the external costs (environment pollution, possible litigation)

Negligence is based on “unintentional harm” nuisance is an intentional harmh. Coase Thereom (no inquiry into causation)

i. Assumption: When there is a conflict between 2 parties' uses of resource, the goal is to ensure that the more valuable use prevails In a world of zero transactions costs all rights would end up in the hands of whoever values them the most regardless of what the legal

system says about who owns themii. Objective: Economic maximization. Doesn't matter if factory will continue to pollute, only matters for the equitable distributive model:

Does the right belong to factory to pollute?o Either homeowners will come together to stop the factory, or the factory will just continue.

Does the right belong to homeowners to be free of pollution?o If yes, polluter will just compensate for the harm so they can continue to pollute.

If high costs--> Party who can put the rights to the more use should prevail --> thus, the court must determine which parties values the rights more and assign them accordingly

VI. Products Liabilitya. Historical Development

i. 19th C: Traditional Rule stemmed from privity (close, mutual relationship bw consumer/seller) Contracts based breach of warranty of merchantability/fitness Privity requirement made it difficult to sue manufacturer

ii. 20th C: Tort-based Products liability emerges MacPherson v. Buick Motor Cor. (1916) (Cardozo)

o Facts: Manufacturing defect with wooden wheels on caro Rule: irrespective of privity of contract, the manufacturer is responsible for an injury caused by such an article to any person who

comes in lawful contact with it1) Owe a duty to not just the direct consumer, but similar to the zone of danger, anyone who can foreseeably be using the

producto Still difficult bc it had the evidentiary requirement, but more successful than express/implied warranty suits

Disadvantages:o Liability only based on immediate seller

1) But could have sequential litigation if one was litigiously-inclinedo Warranties can be disclaimed

1) Can’t waive away tort liabilitiesiii. Post-McPherson/Negligence based

Escola v. Coca Cola Bottling Co. o Facts: P alleged that D was negligent in selling bottles containing said beverage which had excessive pressure of gas or by reason of

some defect in the bottle was dangerous and likely to explodeo Holding: For P Although it is not clear whether the explosion was caused by an excessive charge or a defect in the glass, there is

sufficient showing that neither cause would ordinarily have happened if due care had been used.

1) (Exclusive Control) D had exclusive control over both the pressurizing and inspection of the bottles2) Res ipsa loquitur basis signaled to other courts that cases based on theory could be won without evidence

o Possible pushbacks for D:1) at the time of the accident, the product was in the exclusive control of P --> would have to say P mishandled the product

(here there was no evidence of that)2) bring up some element of time -- consumer had product for a while, could do something wrong with product that led to the

accident Traynor Concurrence

o Suggests SL manufacturer incurs an absolute liability when an article is placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to people

o Rationale:1) **Loss spreading

See Lubin even if D is not wholly at fault/negligent, the law pushes liability on D because they can spread the losses across a

wide base A bit of a fairer outcome / more efficient economic outcome Loss spreading policy has a large hold on products liability theory

2) Least-cost avoider/best position manu can anticipate some hazards and guard against the recurrence of others, as the public cannot

3) Deterrence public interest to discourage the marketing of products having defects that are a menace to the public That is why we place the responsibility for whatever injury they may cause upon the manu, who even if he is not

negligent in manufacture of the product, is responsible for its reaching the market4) Access to knowledge

(unnecessary legal steps) Thinks it's a weird argument to make the P the person to refute any of D's defenses when they have no way of knowing about the manufacturing process or the defect <-- SL standard

Does not matter how often or dangerous the injuries are --> the risk of their occurrence is a constant risk and a general one that the manu is in the best position to protect against

5) Incentives created There is a need for a stronger tort liability to prevail where a market forces based approach cannot create change

6) Shifts in contemporary industry (mass production, larger markets and transportation) Greenman v. Yuba Products, Inc.

o Facts: P was injured using combination tool that after several uses, a piece flew out and injured himo Holding: For P To establish the manufacturer's liability it is sufficient that P proved that he was injured while using the Shopsmith

in a way it was intended to be used as a result of a defect in design and manufacture of which P was not aware that made the Shopsmith unsafe for its intended use

1) P had substantial evidence that his injures were caused by defective design/construction by D2) Expert witness testified that inadequate screw were used to hold machine together so that normal vibration made it come

loose

3) Said there were more positive ways of fastening the parts of the machine together, the use of which would have prevented the accident

4) Even though a warranty claim could be brought (brochure was misleading), it would not be applicable bc the consumers did not deal with manufacturer and give proper notice of complaint (although this might be unconscionable)

o Rule: A manufacturer is SL in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being

1) doesn't matter how/why P came to know of or why they bought the product or whether the machine was otherwise perfectb. Manufacturing Defects

i. Rule for manufacturing defects: imposes liability whether or not the manufacturer's quality control efforts satisfy standards of reasonableness SL (product liability or otherwise) --> causation (cause-in-fact and proximate) must be present beyond the reasonable care required for SL

caseso Cause in fact

1) Could be misuse by P2) Could be introduced by manufacturer, and not caught by seller/retailer

(ASKS: regardless of whether introduced negligently or not, did D introduce the defect)o Evidentiary proof rationale --> RIL like thought to at least prevail over SJ (Welge ) o Loss spreading rationale --> seems a bit easier for the court to apply SL to large corporations who can distribute the costs better than

individual If P wants to use implied warranty of contracts approach --> Court might not have enough confidence that the court will have the strongest

incentives to change manufacturing processes. o Strong imbalance of bargaining power between corporations and consumers.

ii. Welge v. Planters Lifesavers Co. (FILL IN) Facts: P’s roommate buys P a glass jar of peanuts, and uses an exacto knife to get the label for a rebate offered by K-Mart; Welge uses the jar,

it shatters and cuts his hand severely; sues 3 D’s (Kmart: seller, manufacturer; glass jar manufacturer) Holding: On the evidence presented, it seems highly likely that the jar was either manufactured with the defect, or got the defect at least

before reaching P. Thus, those involved in placing the product on the market are strictly liable for damage from defective product. Rule:

o Res Ipsa Loquitur-like thinking b/c we don't actually ask about a breach of standard of care, but we do want to think about the causation at the very least.

1) Put pressure on D to exonerate themselves, to smoke out the truth or to hold D liable if they cannoto Strict liability element comes from the fact that a seller is liable for defects in product even if those defects are introduced without

the slightest fault of his own for failing to discover them and putting them on the marketo Ybarra: Even if P was to try to prove that it was more likely than not one D introduced the defect --> could use Ybarra to force each D

to produce some exculpatory evidence1) Not perfectly analogous to Ybarra because the timing is not contemporaneous, but consequential

iii. Hypos If P was sole cause of defect post purchase, would D be liable?

o If misuse is the sole cause of the accident no recovery.

o If misuse is a contributory aspect of accident P's recovery reduced accordingly. IF both D and P contributed to the cause of the defect, is D still liable?

o If the exacto knife did indeed weaken the jar, Posner suggests that there was a combining of P's weakening of otherwise defective product.

1) At best, it is a reduction of damages similar to comparative negligence (but, not 1-1 connection, bc that is about how to apportion damages for breaches of standard of care.)

2) SL/product liability does not ask about breaches of standard of care. 3) Posner would suggest reduction of damages, not granting of SJ.

Suppose the evidence at trial shows that the defect was introduced by a Kmart EE; in trying to set up the bottles in a pyramid for display, he caused them all to fall down and one of them apparently cracked. He didn't see the crack, however, and put the jar back on top of the pyramid; the P selected it the next day, and the crack led to the injuries described in the case. Liability for Planters?

o Would be able to bring all to jury at least -- burden shift to D to prove innocence. (Ybarra esque reasoning)1) Policy concern: Not strong b/c Kmart is able to loss spread/liability distribution theory

o Strongest case for L --> Kmart, respondeat superior. There was misuse by the Kmart EE.o Probably not. The defect was most likely caused by the Kmart EE dropping the jar. The defect was introduced after the product had

left Planters' control entirely. 1) SL means that anyone who handles the product after the defect is introduced is liable regardless of fault, not that anyone

who ever handled it is liable. o Jar manufacturer -- may be able to recover for poorly designed/weak product if the fall was not from a tall height. If it was just

minor, then it would be at least a slight indication of contributory fault. Suppose the evidence at trial shows that a miscreant at the Planters factory carved weaknesses into the jar then hit it with the others in a box.

The Kmart EE use all due care in handling and inspecting the jars, but do not catch the bad one. Liability for K-mart?o Directly linked to Ponser's opinion. o If the defect is introduced at an early stage of the process, everyone who handles the product after the fact and fails to catch the

defect, all of those organizations are SL. 1) R § 402A and Welge

o People prior to introduction of Defect = NL (Welge ) iv. What if a business/profession provides a service that involves application/use of a purchased product that has a defect?

Magrine v. Krasnica o Tags: no strict liability, special profession, utilityo Facts: D's hypodermic needle breaks off in P's gum during dental procedure; both argue the needle had a latent defect and dentist

performed no negligenceo Holding: For D SL is not a good theory here because:

1) D is not in a better position than P to have discovered this latent defect2) the dentist is not going to be able to effectively distribute the losses/costs of liability (See Escola )

Dentist practice not normally large effectively spread costs Malpractice insurance does not cover implied warranty necessarily Even if insured, would be passed and medical costs are high already.

o This assumed that losses would be spread by higher medical costs. There are other ways to spread the loss though, so the economic rationale is weak.

o Rule: 1) SL is imposed upon those who are in a better position in the sense that they created the danger (in making the article) or

possessed a better capacity or expertise to control, inspect and discover the defect than the party injured2) Risk distributing theory: considered in holding liable the manufacturer or lessor who put the goods in the stream of

commerce. Such a party may fairly be assumed to have substantial assets and volume of business, and a large area of contacts over which the risk can be widely spread.

Large scale enterprises should bear the loss. (less impact) (See Escola ) Newmark v. Gimbel’s Inc

o Facts: P was customer at D's hair salon and asks for permanent wave; the Helene Curtis Candle Wave causes dermatitis on her scalp and causes hair loss; P sues for negligence and claims that solution was defective and D was SL for breach of implied warranty

o Holding: Judgment for P Here, the salon should be treated as a seller of a product.1) If the permanent wave lotion were sold to Mrs. Newmark by D for home consumption or application or to enable her to give

herself the permanent wave, unquestionably an implied warranty of fitness for that purpose would have been an integral incident of the sale

2) Common sense demands that such patron be deemed a consumer as to both manufacturer and beauty parlor operatorso Rule: Consider the difference between products and services and the public policy importance of the activity.

Distinctions: (Special factors: nature of the services, utility of and the need for them >> SL)o Sold at home

1) Perhaps the dental case can be distinguished b/c the needle was not something that plausibly could have been sold to the P as an ordinary product

o Different kinds of activities1) Q: What is SL good for? Changing activity levels.2) The court also relies on the idea that medicine and beatification are fundamentally different activities. Perhaps the idea if

that the kind of activity level pressures SL can create are more toleration were less important services like hairdressing.3) Consider §520 importance of the activity to the public cuts in favor of negligence rule.4) Relatedly, court emphasis that dentists and physicians are in a profession, not a commercial enterprise.

Magrine: (profession)o Doctor/dentist = professiono Cannot advertise for patiento demand for his services stems from a felt necessity of the patient – patients don’t do self dental careo Not an exact science 00> each patient requires individual study and formulation of an informed judgment --> no implied warranty of

cure/reliefo Public Policy:

1) Doctors/dentists have paramount function in society2) Licensed by state to practice after years of study and preparation and thus have a special and essential role in our society

Newmark : (retailer/provider)o Beautician = commercial enterprise/retailer

o This is not a need --> Provides nonprofessional services and applies products for which a charge is madeo People can buy products from salon and go home and apply it themselveso Thus, where you are part seller/part provider = retailer for purposes of product SL.

v. Examples: Keen v. Dominick’s Finer Foods, Inc.

o Tags: product not actually offered, but given to facilitate NLo Facts: P was pushing a shopping cart when the cart inexplicably tipped over in D's grocery store; she was hurt when she tried to stop

it from tipping over; claimed cart was defective under SLo Holding: For D (not SL) Although grocery store is a retailer, the shopping cart itself was not an item for purchase. D gratuitously

furnishes the carts to its customers to facilitate the customers purchase of good. 1) P can still sue under a theory of negligence though, perhaps claiming negligent maintenance of carts. (see business guest:

duty to inspect) Peterson v. Loud Bachrodt Chevrolet Co.

o Facts: P's decedent was killed when she was run over by a car that had been purchased from D's used car dealership; P sues dealership on theories of SL alleging that accident resulted from various defects in car's brake that were present when car left the dealership

o Holding: For D (not SL) Products liability theory is usually not applicable for used products bc they are not heavily involved in marketing/promotion nor in best position to change it.

1) Distinction between retailing new car dealership and used car dealership. 2) P can still sue under a theory of negligence though negligent mechanics/workmanship before sale (affirmative action

before sale, rather than just resale) Gray area: If there is an element of “re-manufacturing/refurbishment” this should signal SL since they are doing

some work to make the product marketable3) Split of authority over treatment of used goods though.

o Rule: SL against wholesalers/retailers is most effective when they are heavily involved in the marketing and promotion of the products and are thus in a position to exert pressure on the manufacturer to enhance safety

1) Policy: Deterrence for retailers to take more safety precautions with the products they offer2) ALTERNATIVE RATIONAL: Under theory of consumer expectations no SL b/c lower expectations for used cars

Nutting v. Ford Motor Co. o Facts: HP bought thousands of cars for employees and auctioned them years later; P bought one of HP's car at auction, then was

injured when it stalled on the highways; she sued HP under SLo Holding: For P (SL applied) (Policy) ability of the seller, bc of its continuing relationship with the manufacturer

1) “To exert pressure for the improved safety of products and to recover increased costs within their commercial dealings.”2) HP has a role in the regular distribution of used vehicles.3) HP itself has recognized the leverage generated by its purchases of large number of vehicles directly from the manufacturer,

leverage which can be used to encourage improved safety.o Rule: If non-seller has special role/engaged in the distribution chain stronger case for SL

1) Pushback: HP seems more like a used car dealer, than new car dealer here and does not mesh with Peterson (perhaps HP is not really a merchant, but they have taken steps to put themselves in that same space, course of dealing is long and they sufficiently engaged in this activity of re-distributing cars at a large enough scale, that this entered into “business” realm.)

vi. Foods (natural v. foreign)o Majority of jurisdictions currently impose SL on providers of good for any foreign matter in ito If P is injured by a substance in the food that might be considered natural, the question typically becomes whether the diner

reasonably should have expected to find the substance in the food.o Food manufacturing defect: something that deviates from the “manufacturing line” or typical consumer expectations of the

preparation Mexicali Rose v. Superior Court

o Facts: P was injured when he swallowed a one-inch bone in enchilada he was served at D's restaurant; sued on claims of negligence, breach of implied warranty and SL

o Holding: For D (no SL) restaurant owners were liable for damage caused by foreign substances in their good i.e. insects or glass, but could not be held liable for injuries caused by substances natural to food i.e. bones

1) Test depends on what reasonable consumer could have expected to find in the foot, but said that consumes should expect to find natural substances in the food there no SL claims for bones. Negligence could proceed.

o Rule: Harm caused by food foreign substances and p gets hurt SL ; if natural substance then it usually comes down to whether the diner reasonably should have expected to find the substance in the food.

1) if the injury-producing substance is natural to the preparation of the food services, it can be said that it was reasonably expected by consumers by its very nature and food cannot be determined unfit or defective

o HYPO: What is this happened at a Michelin-Star restaurant? 1) SL: consumer expectations at this type of restaurant are much higher. (weak, there are also policy implications—different

standards not good)2) No SL: context does not matter. The bone is still natural to the chicken. And thus, consumer expectations might matter less

in consideration to the rule.c. Design Defects (split in authority though – double check)

i. Dawson v. Chrysler Corp. Facts: Dawson is a cop, who crashed his cop car into a pole; bc the car did not have a continuous frame/cross-member, the car wrapped itself

around a pole and Dawson became a quadriplegic Holding: For P the lower court did not err in its jury instructions which allowed the jury to weigh the expert testimony and evidence to

determine if the 1974 Monaco was “not reasonably fit, suitable and safe for its intended or reasonably foreseeable purposes” o D’s argument that the alternative design had different pros/cons was strong, but jury was allowed to make its own decision

Rule: adopts R3d “risk/utility analysis” based on balancing of seven factors “if at the time the seller distributes a product, it is not reasonably fit, suitable and safe for its intended or reasonably foreseeable purposes…seller is liable” To determine to the test:

o Rejects R2d §402A’s language that the defect must cause the product to be “unreasonably dangerous” to the user/consumerii. Wyeth v. Levine

Facts: P got a shot of an anti-nausea drug made by D; gets gangrene; arm is amputated; D defends that the label conformed to FDA standards Holding: For P adherence to federal standards for warning do not bar P’s claims, and P’s claim that there should have been a warning for

gangrene in addition doesn’t conflict w/ federal labeling requirements; plus there is no evidence of Congressional intent to preempt state law

iii. Green v. Smith & Nephew Facts: P alleges that D’s powder latex gloves were defectively designed bc it created a new allergy by their interaction w/ her immune system Holding: For P Wis. SC rejects 3d and says the latex glove’s reaction was not a reasonably expected risk/harm. Rule: Alternative to risk utility Adopts R2d. (Consumer Expectations Test) design defect turns on whether a product’s failure frustrated the

safety expectations of the ordinary customer”iv. Dreisonstok v. VW AG

Facts: P was passenger in VW microbus that crashed Holding: For D VW’s vehicle was a special design that was uniquely developed to provide the owner with maximum cargo/passenger space

at an inexpensive price and for easy maneuverability. The usefulness of the design is vouchsafed by the popularity of its design. o Safety traded away for convenience/luxury component (VW); safety traded away for safety of another sort (Dawson)

Rule: where the risk could only be eliminated by tradeoff of the most attractive feature of the product reasonable consumer understands and assesses the obvious risk implied assumption (see Flopper)

v. McCarthy v. Olin Corp Facts: Decedent’s estates sue bullet manufacturer for defectively designed bullets used by mass murderer; Holding: For D The bullet performed exactly as it was designed and intended to do; the very purpose of the Black Talon bullet is to kill or

cause severe woundingo Risk/utility test is inapplicable because the risk arise from the function of the product, not any defect in the product

RULE EXCEPTION: some products i.e. bullets/knives must by their very nature be dangerous in order to be functional this is a legislative question

d. Failure to Warn/Marketing Defecti. American Tobacco Co. v. Grinnell

Facts: 19 yr old Grinnell begins smoking lucky strikes, switches to Pall Malls at 20 yr old and smokes for 33 years. Gets lung cancer and dies. P’s estate sues on grounds that American Tobacco failed to warn of and actively concealed fact that it knew or should have known that Grinnell could become addicted to cigarettes and that his smoking could result in death.

Holding: For P D is SL for failure to warn of addictive properties, but not for the general health effects.o §402A explicitly says good tobacco (non laced) = common knowledge risks but risk of addiction is not common knowledgeo at the time P started smoking, FDA did not consider tobacco addictive today 100% of public health orgs do.o (rebuttal presumption) There is evidence that some ppl warned P of the general dangers of smoking, but no conclusive evidence that

he was warned of addictiveness before he started smoking + P testified he would not have smoked had he known behavioral science evidence of addiction changed the view on smoking

o Dissent: Addiction is not harmful/tort law is about the harm. Even if “addiction” is unknown, ppl know it’s hard to quit. Rule: R2d, §402A Failure to warn of a product’s potential dangers when warnings are are required = marketing defect manu has duty to

warn if it knows or should know of the potential harm of its product bc of the nature of its producto Exception: no duty to warn (MOL) if common/ordinary knowledge common to the community (not “unreasonably dangerous”)

1) Does not impose reasonable alternative warning2) Common knowledge = patently obvious and very well known to the community.

o Rebuttal/Heeding presumption rule: P get the benefit of the doubt that they would have heeded a warning if there was one. ii. Graves v. Church & Dwight

Facts: P had heartburn, tried grandma’s remedy and drank a glass of baking soda it combined with stomach acids and created gas that ruptured his stomach; P sued that D should have warned of this consequence of ingestion

Holding: For D Even though D negligently lacked a warning, P himself and D showed that P would not have heeded warnings if they had been on the box He smoked 2-3 packs of cigs a day and said he still might if there was a skull and bones on the package

D’s strongest defense: manu can rebut the presumption that user would have heeded warnings by showing evidence otherwise o if D can prove that P would not have heeded any warnings had there been some, then he can get this to jury

P response: long term risk between cigarettes (addiction) does not analogue to immediate threat/risk of stomach rupture. iii. Brown v. McDonald’s Corp

Facts: P purchased McLean Deluxe; contained carrageenan which caused severe allergic reaction; P sues for failure to warn of risks Holding: For P (prevail over SJ) HAND FORMULA: even though D had fliers with ingredient information, P was not given one nor knew that it

was available and thus the risk of both the likelihood and the seriousness of potential harm are factors in jury decision to warn. Rule: No duty to warn for common allergies; but must warn if product contains ingredient substantial portion of population is allergic to and

whose danger in the product is not reasonably expected. (HAND FORMULA: is the burden the act of labeling, or the also the burden of loss of customers/cost associated with determining what to label)

iv. Abandonment of R2d 402j: Many jurisdictions reject the R2d notion that “where warning is given, seller may reasonably assume that it will be read/heeded” making

product not unreasonably dangerous. R3d: Warnings are not effective in eliminating injuries due to instinctual reactions, momentary inadvertence or forgetfulness of worker

v. Liriano v. Hobart Corp. (CHECK PPT) Facts: P was using a meat grinder from which his boss had removed the safety guard; arm is severed by machine Holding: For P (1/3 contributory negligent affirmed) even if most ordinary user know of the risk of using a meat grinder (without guard), it

is not reasonable that they would now one was available and ask for such protection. He was owed duty to know of safer alternative and instruction for product made less safe.

vi. (PHARMA) Unavoidability unsafe products R2d 402A, comment K. seller of such products i.e. drugs is not liable for product so long as it is properly prepared, accompanies by proper

directions and warning, is not defective nor unreasonably dangerous. not SL. R3d §6: (LEARNED INTERMEDIARY) prescription drug or medical device is not reasonably safe due to defective design if the foreseeable risks

of harm posed are sufficiently great in relation to its foreseeable therapeutic benefits that reasonable health care providers knowing of such foreseeable risk and therapeutic benefits would not prescribe the drug .

vii. Brooks v. Medtronic, Inc. Facts: P got a pacemaker, but lead came loose from heart muscle and he had 15 episodes before getting fitted for a better one Holding: For D Medtronic gave all doctors including P’s physician warning of the risks. Rule: Learned intermediary manufacturer of ethical drugs only has a duty to warn physicians of an risks associated the drug to be

prescribed. Doctor is in the best position to understand the patient’s needs and assess the risks and benefits of a particular course of treatment.

o Policy: reluctance to undermine doctor-patient relationshipo Absence in the era of doctor knows best of need for patient’s informed consento Inability of drug manufacturer to communicate with patiento Complexity of the subject

viii. Perez v. Wyeth Laboratories Facts: Women who used Norplant contraceptive implant in arm sued alleging various side affects that Norplant failed to adequately warn

them of. Holding: For P learned intermediary cannot shield Norplant bc they advertised direct to consumers in misleading fashion. EXCEPTION CREATED: b/c drug manufacturers directly advertise to consumers; it generates a corresponding duty requiring manufacturers to

warn of defects in the product. none of policy concerns for learned intermediary are implicated, thus no shield.